The US Supreme Court has refused to hear a petition by the Authors Guild challenging a decision of the Second United States Court of Appeals in New York upholding a lower court judgment concerning Google’s unauthorised digitising of copyright-protected works.

In November 2013, a New York Court dismissed a class action by authors over Google’s mass digitisation of books for its online library undertaken without the permission of the authors. The judge ruled that scanning the books and making searchable text available was a fair use under US copyright law.

The judge found that, although Google was in the business of making money, it was not engaging in “direct commercialisation” of the copyright works. The judge considered that, rather than adversely impacting sales, Google Books was actually more likely to enhance book sales by effectively acting as a shop window. He considered also that there were public benefits to the digitisation project including facilitating research and data mining and enabling access to more books by more people.

The Court of Appeals, in a judgment of 16 October, agreed with this reasoning, finding that the copying the creation of search functionality and the displaying of snippets from the works was indeed fair use. This was because, in the Court’s view, the purpose of the copying was “highly transformative”, the public display of the text is limited, and the snippets “do not provide a significant market substitute for the protected aspects of the originals”.

The Court of Appeals emphasised that the transformative nature of the copying is not simply turning a print product into a digital one; the transformative aspect in this case is the digitisation of a large number of books in order to build a search engine. It is the value in the data created by the running of the search that is the essence of Google’s digitisation project. In the Court’s words, the purpose of Google’s copying of the original copyrighted books “is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest” and to “learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods”.

Now, in what may turn out to be the final chapter of this saga – although undoubtedly not the last word in what is meant by “transformative” (see our article on the artist Richard Prince, for more on this) – the US Supreme Court, in a judgment of 18 April, refused to hear a challenge by the Authors Guild to the US Court of Appeals decision.

Whether an English court would reach the same conclusion is questionable. Google would need to show that its activities fell within one of the permitted statutory exceptions to copyright infringement and that its use was fair dealing, a similar concept to that of “fair use” in US law. One of the exceptions relates to libraries. Libraries are able to make copies of articles, or a reasonable proportion of a published copyright work, as long as the copy will be used for non-commercial research or private study and the person making the request has supplied the library with a declaration to that effect. Libraries may also make works available on computers, provided this is on dedicated terminals on their premises and the works must be communicated in compliance with any purchase or licensing agreement to which the work is subject. Even assuming Google could successfully argue that Google Books is a library, it would be no easy task to satisfy the fairly limited library exception under English law.