On April 18 2016 the Supreme Court declined to hear an appeal in Authors Guild v Google, thus leaving in place a lower court ruling that Google did not infringe authors' copyrights in its project to create a searchable library of the world's books. The US Court of Appeals for the Second Circuit had held that Google's project was a protected 'fair use' of copyrighted works.

Since 2004 Google has scanned more than 20 million books as part of its library project, with the goal of providing a "virtual card catalog" of books in all languages. The project would not allow users to download substantial portions or all of a copyrighted book, but would allow users to search and find excerpts of any book. Google claims that the system would benefit authors as it would point users to a place to buy the book whose excerpts were being viewed.  

The Authors Guild, a writers' organisation, brought suit in 2005 for copyright infringement. A primary concern was that the 'snippets', which could include actual images from the scanned books, were too substantial, including pages before and after the searched-for material. In addition, some search terms could occur throughout a book, so that search results could encompass a substantial portion of the work. Google had included some protective elements in its system, including a means for authors to request the removal of snippets from search results, as well as limiting some search results to a single page based on context.

Google and the Authors Guild reached a settlement whereby Google would have paid approximately $125 million to copyright holders, but would have been able to continue scanning titles and generating revenue from displaying ads against search results. However, the district court rejected the settlement in 2011 as giving Google a significant advantage over competitors, while releasing claims well beyond those presented in the case.  

An amended class action complaint was filed in 2011. However, the district court judge dismissed the case in 2013, concluding that the Google Books project was fair use under copyright law. On appeal, in 2015 the Second Circuit upheld the ruling, explicitly stating that Google Books was protected as "fair use" of the scanned material. The court found that the purpose of the copying was to make available significant information about the books, permitting a search to identify those that contain a word or term of interest. Users could also learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods, which satisfied the transformative portion of the fair use analysis. The court also found that Google's snippets provided just enough context for the search results, thus allowing a searcher to evaluate whether the book fell within the scope of interest, without revealing too much.

The Authors Guild petitioned the Supreme Court to hear the case, but the petition was rejected without comment. This leaves the Second Circuit's decision in place, and Google can continue its project without paying any royalties to or making any further accommodations for book authors or copyright holders.

W Edward Ramage

This article first appeared in IAM. For further information please visit www.iam-media.com.