After a ten-year battle, the U.S. Court of Appeals for the Second Circuit ruled that Google, Inc. does not infringe the copyrights of authors through its Google Books project and Google Library Project. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015). Through these projects, Google makes and retains digital copies of more than twenty million books submitted to it by major libraries, allows the libraries that submit a book to download and retain a digital copy of that book, and allows the public to search the texts of the digitally copied books for specific words and to see snippets of text containing those words.

Google was sued by authors who claimed that Google infringed the copyrights in their books. The district court granted Google summary judgment, finding that Google’s use of the authors’ books satisfies the “fair use” defense under 17 U.S.C. § 107 and therefore does not infringe the plaintiffs’ copyrights. The Second Circuit affirmed.

The fair use doctrine allows the public to use copyrighted materials without the permission of the copyright holder in certain circumstances. The fair-use analysis considers four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (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.

A significant factor in the Second Circuit’s finding of fair use was its determination that Google’s use of the plaintiffs’ books constitutes a “transformative use”—or, in other words, a use that adds something new, with a different purpose or character. This finding informed the court’s analysis of all four of the fair-use factors.

Google Books’ search feature allows users to identify books that contain a certain word and those that do not, and provides statistical information about the frequency of word use. In finding that the search feature provides a transformative use, the court observed that the search feature provides information about the plaintiffs’ books not available from the books themselves.

This conclusion was consistent with the Second Circuit’s earlier ruling in Author’s Guild, Inc. v. HathiTrust that, under the specific facts of that case, the fair-use doctrine allowed libraries to provide a searchable database of books. See Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014). But Google expanded theHathiTrust holding in at least two important ways.

First, unlike the database in HathiTrust, Google’s searchable database makes available to the public “snippets” of text containing the searched-for words. The Second Circuit found that Google’s snippet feature actually enhances the transformative use of the search feature because it allows users to determine if the searched-for word is used in a context that is of interest to the user. Thus, the limited disclosure of text to the public actually supported a finding of fair use.

The court’s opinion makes clear, though, that the amount of text revealed through the snippet feature is important. The court pointed out that only a limited portion of any given work was accessible through Google’s snippet feature, and that the snippet feature would not provide a meaningful substitute for the authors’ books.

Second, unlike the defendant in HathiTrust, Google is a for-profit entity. Google does not receive any direct revenues from its Google Books project, but the plaintiffs argued that Google indirectly profits from the Google Books project by seeking to establish its dominance of the Internet search market. The Second Circuit rejected the plaintiffs’ argument that Google’s commercial motivation weighed against a finding of fair use, in part because Google’s use of the plaintiffs’ works through the Google Books project was highly transformative and did not provide a significant substitute for the plaintiffs’ works.

For these reasons, the court found that the first and second fair-use factors weighed in Google’s favor. Under the third fair-use factor, the court concluded that, even though Google copied the plaintiffs’ entire works in order to provide its search feature, such copying was necessary to achieve its transformative purpose. And, as discussed above, the court found that Google’s snippet feature did not disclose enough of the plaintiffs’ books to the public to provide a substitute for the plaintiffs’ works. Because the snippet feature does not provide a substitute for the plaintiffs’ works (based, in part, on the amount of text disclosed to the public and Google’s transformative use of the plaintiffs’ works), the court also determined that the fourth fair-use factor weighed in Google’s favor.

Implications of the decision

The Google decision once again affirms the importance of an accused infringer’s “transformative use” in establishing the fair-use defense. In addition, in this day of digitization, the Google decision provides important insight into the types of search tools that will be permitted under copyright law.