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Second Circuit affirms district court's holding that Google's creation of searchable, digital copies of tens of millions of books constitutes fair use under Copyright Act, because Google's search service merely provides information about books and displays only small "snippets" of books’ text, and therefore serves transformative purpose that will not harm marketplace for books.

The Authors Guild, individual authors and several publishers sued Google, Inc., for digitizing and creating a searchable database of 20 million books, including books protected by copyright, as part of its Google Books and Library Project. The district court concluded that Google’s copying constitutes fair use under the Copyright Act. On appeal to the Second Circuit, the plaintiffs contended Google’s copying, digitization and display of copyright-protected works did not constitute fair use. They also argued that Google’s service infringes their right to prepare derivative works of their copyrighted works, creates the risk that hackers will gain access to and disseminate full digital copies of the books, and violates their copyrights by distributing the digitized copies to participating libraries. The Second Circuit affirmed, finding the project to be a highly transformative use within the scope of the fair use doctrine.

As part of its Library Project, Google scans entire books found in the collections of participating libraries, which include both works under copyright and works in the public domain. After digitizing and indexing the books, Google provides the participating libraries with digital copies of the books. The libraries agree to make only noninfringing uses of the digital copies, and to take precautions to prevent the dissemination of the digital copies to the public at large. Google did not seek or obtain permission from the rights holders to digitally copy or display their books.

As part of its Google Books project, Google then indexes all the words that appear in the books it has digitized, so that users can search the books database for specific words or terms. Google Books displays small “snippets” of each book that contain the searched-for terms. Users are also directed to an “About the Book” page, which includes links to sellers of the books and libraries that have book in their collections.

In its de novo review, the Second Circuit analyzed the four fair use factors under the Copyright Act: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Regarding the first factor, the Second Circuit found Google’s use of the copyrighted works to be highly transformative. A transformative use, the court explained, is “one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.” Transformative uses include copying for the purpose of criticism or commentary, or to provide information about the original work.

The court found that Google’s search features — which merely display small “snippets” of the book containing the searched terms, and thereby helps identify books that would be of interest to the searcher — merely provide information about the copyrighted works, rather than serving as a substitute for the expressive content in the books themselves. Google’s use of the works was thus highly transformative. Although Google’s use was commercial in nature, that did not automatically disqualify it from being a fair use, according to the court, as many of the universally accepted forms of transformative fair uses are motivated by profits.

The second factor — the nature of the copyrighted work — typically does not play a significant role in the fair use analysis, but is helpful in deciding whether the defendant’s use is transformative, according to the Second Circuit. The court found that the second factor favors fair use in this case, “because the secondary use transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute for the original.”

The third factor — the amount and substantiality of the portion of the original work used in the secondary work — ostensibly weighed against fair use, as Google copied the books in their entirety. The court noted, however, that “courts have rejected any categorical rule that a copying of the entirety cannot be a fair use.” The Second Circuit found that copying anything less than the entirety of the copyrighted book would defeat the purpose of creating a full-text searchable index, which, the court had already concluded, is a highly transformative use. The Second Circuit also found that while Google’s display of snippets allowed users to see portions of the book itself, the portions were too small to serve as a substitute for the experience of reading the book itself, and the security measures implemented by Google helped ensure that full digital copies of the books did not become publicly available.

The fourth fair use factor is the effect a secondary use will have on the potential market for or value of the original. The court noted that inCampbell v. Acuff-Rose, the Supreme Court drew a connection between the fourth and the first factors, explaining that the more transformative a secondary use is under the first factor, the less likely it is that the secondary use will have an effect on the market of the original under the fourth factor. The court found that the highly transformative nature of Google Books’ search functionality had no significant effect on the market for copyrighted books, because a search for selected words does not serve as a substitute for purchasing and reading the book itself. Although the snippet view feature could conceivably result in lost sales when a user of Google Books is searching for only a small piece of information contained in the book, that type of information will often be factual in nature, which is not subject to copyright protection. The fourth factor therefore weighed in favor of fair use.

The court also rejected plaintiffs’ argument that Google’s book scanning activities infringed their right to prepare derivative works. The Second Circuit explained that an author’s exclusive right to prepare derivative works does not encompass the right to provide information about the original work in the transformative way that Google has devised. The Second Circuit also rejected plaintiffs’ arguments that Google was impeding the authors’ ability to license their works to other searchable databases, finding that those display a much larger portion of the book than does Google Books’ snippet view. Google Books is therefore not a substitute for those other services.

Finally, the court rejected plaintiffs’ argument that Google’s distribution of full digital copies of the books to participating libraries was not a fair use, because of the possibility that these digital copies could become publicly available, or be used by the libraries in infringing ways. The Second Circuit noted that the libraries were merely using Google’s resources and technical expertise to index books in their collections, in a way that would be fair use if it were done by the libraries themselves. Furthermore, Google and the participating libraries are operating under agreements that prohibit the libraries from using the digital copies in infringing ways, the court noted.