Comments by the federal judge overseeing the copyright dispute arising out of the Google Books project could portend a lasting effect on reproductions of visual arts.  Elevating the question of social benefit in a fair use analysis, Judge Denny Chin of the U.S. District Court for the Southern District of New York posed a question that, applied broadly (which is no theoretical proposition where Google is involved) could turn fair use analysis on its head.  Time will tell if the comments were oral argument musings or something more lasting.

The Google Books project involves Google’s scanning of tens of millions of books, scanning that The Authors Guild and others argue is a copyright infringement.  Not surprisingly, the litigation has been massive, and possible settlements have been frequent fodder for news coverage.  According to the Google Books home page, Google is “working with several major libraries to include their collections in Google Books and, like a card catalog, show users information about the book, and in many cases, a few snippets – a few sentences to display the search term in context.” 

Last week the matter was back before the District Court to analyze whether the project constitutes a fair use, notwithstanding the copyright protection over the books being scanned. 

Google has asserted that such use of the books, is fair use, which allows copying for purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”  17 U.S.C. § 107.  As the Richard Prince/Patrick Cariou and Green Day cases have highlighted in the visual arts, that purpose is assessed by considering 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.

At oral argument, Judge Chin reportedly cited the utility of Google to his law clerks, and suggested that the project’s benefit to society was paramount.  “Aren’t these transformative uses, and don’t they benefit society?” asked Chin.  The answer to the first question is clearly “no.”  Snippets, long or short, for the purpose of relaying the content of copyrighted works, do nothing whatsoever to transform the meaning or purpose of the protected works.  And given that, the “benefit to society” question would come out the same way for any category of free information.  Copyright is inherently in tension with unfettered access, but that is the nature of the protective regime.  Chin’s apparent suggestion that he might do something otherwise given his expectation that Congress will fail to act is puzzling given Congress’s unique role in copyright protection.  And, his query of whether people using the project to read entire books without paying for them “is a real concern” is in reality a classic tragedy of the commons; of course people will try to use a free resource rather than paying for it.

It is not hard to see how such a view would affect visual arts, movies, and museums.  Someone could always make an argument that wider access is a social good (and a compelling argument it is).  The very distances between great works of art would, from that perspective, encourage such a use to benefit interested viewers.  But it does not alter the protection emanating from copyright, itself an enumerated Article I power under the Constitution.  Thoughtful commentary and scholarship will continue to explore the difficult questions of how copyright can adapt to the contemporary world, but ignoring copyright itself is not a meaningful solution.