On October 16, 2015, the Second Circuit Court of Appeals ruled that Google’s book scanning project is fair use.  In its holding, the Court rejected the copyright infringement claims of Authors Guild in their attempt to stop Google from scanning and making books searchable. 

According to the Appeals Court in New York, Google’s use falls within the “fair use” exception to copyright infringement, allowing people to use snippets of a protected work for certain transformative purposes, like search in this case. 

Background of Authors Guild v. Google

In 2004, Google began an ambitious project to digitize every book in the world.  In collaboration with participating libraries, Google scanned, rendered machine-readable and indexed more than 20 million books. 

In September 2005, Authors Guild brought a class action suit against Google on behalf of all authors to halt the project.  After several years of negotiations, in 2011, the parties reached a settlement that would have allowed Google to make even more extensive use of the scans and mandated that Google make payments to the authors.  A district court rejected that settlement.

Click on here to read more about Authors Guild v. Google, Inc.

How Google Books Works

Users who access the Google Books’ website can enter search terms and receive a list of all of the books in Google’s database which contains those terms.  The search returns a brief description of each book, provides links to buy the book online (if it’s available) and identifies libraries where the book can be found. 

Google Books’ search function allows users a limited viewing of text and a maximum of three snippets of text from the book which contains the search term.  That users can view snippets of actual text from protected works was the crux of Authors Guild’s infringement claim.

What Constitutes A Fair Use? 

The Copyright Act does not provide specific guidance on what constitutes a fair use and what does not.  While the Act calls for a case-by-case analysis, it allows transformative use of copyrighted works (i.e., use that is not infringing) which includes criticism / parody, comment, news reporting, teaching, scholarship, or research.  Writing for the Court of Appeals, Judge Pierre N. Leval noted that the four factors are not to “be treated in isolation, one from another.  All are to be explored, and the results weighed together, in light of the purposes of copyright.”

In exploring Google’s use, the Court balanced these four factors from Section 107 of the Copyright Act in its fair use analysis:

  1. The reasons for and manner of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount that is being appropriated from the copyrighted work in relation to that work as a whole; and
  4. The impact, if any, on the value of the work copied.

First Two Factors: Reasons for the Use and Nature of the Work

The Court noted that it is impossible to analyze the first factor without including the second, which on its own “has rarely played a significant role in the determination of a fair use dispute.”  In analyzing the first factor, the Supreme Court in Campbell v. Acuff Rose Music, Inc. looked at the “purpose and character” of the secondary use.  In Campbell, the Supreme Court provided significant guidance on when a transformative use supports a finding of fair use, noting that there must be justification for the taking.

The Appeals Court observed that a conclusion that the secondary use is transformative weighs in favor of a finding of fair use, where such use “communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”

Using the analysis from Campbell, the Court found that 1) Google’s transformative use (or justification for using the entire original work) is to provide information about the original work not otherwise available to the public, and 2) its snippet view is an important addition to the transformative use of identifying books of interest for users.

The Court found that Google’s snippet view does not harm the value of the original by offering a competing substitute for the original work. 

Next, Authors Guild argued that Google’s commercial or profit motivation should weigh in favor of finding infringement.  The Court disagreed, noting that “Congress could not have intended such a broad presumption against commercial fair uses”, since almost all of the illustrative fair uses “such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.”

The Court ultimately decided that the first two factors should weigh in favor of fair use, noting that a commercial motivation should not outweigh a legitimate transformative purpose.

Third Factor: Amount and Substantiality

The third factor deals with the amount and substantiality of the portion used in relation to the protected work as a whole.  The Appeals Court analyzed this factor in combination with the fourth factor, noting that the greater the amount of the original that is copied, “the greater the likelihood that the secondary work might serve as an effectively competing substitute for the original, and might therefore diminish the original rights holder’s sales and profits.”

In order to properly function, Google must copy the entire original work to calculate whether a user’s search term appears in a book.  The Court noted that the practice of copying an entire book is “reasonably appropriate to Google’s transformative purpose” and “is literally necessary to achieve that purpose.”

Fourth Factor: Effect of Copying Upon Potential Market for Original Work

The purpose of the fourth factor is to determine if the copy presents a competing substitute work in the marketplace which would displace the original work.  Such a secondary work would have the potential to deprive the copyright holder of sales and revenue because potential purchasers might buy the secondary work instead of the original. 

The Court found that Google’s snippet view (where the user sees snippets of the actual text from the book containing the search term) does not harm the value of the original by offering a competing substitute for the original work.  “Google has constructed the snippet feature in a manner that substantially protects against its serving as an effectively competing substitute for Plaintiffs’ books.”

Conclusion

The Court held that Google’s unauthorized digitizing of protected works, creating a search feature and displaying snippets from the original works are non-infringing, fair uses. 

Significance of Case

While Authors Guild may appeal this decision, it is unlikely that the Supreme Court will hear the case.  Given that there are no conflicting rulings from other circuits on this issue and that the Second Circuit followed Supreme Court precedence to the letter, there is no reason for the Supreme Court to intervene. 

Additionally, with this decision, the Second Circuit has added “search” to the list of uses that qualify as a fair use defense to claims of copyright infringement.  This means that protected material that results from searches using Google, Bing and other search engines will have a viable defense to a claim of infringement by the search engines.