Judge Denny Chin, in the Southern District of New York, issued an opinion and order granting defendant Google Books’ motion for summary judgment, and dismissing the case. Judge Chin engaged in in-depth analysis of the fair use factors, and found that the copying and distribution performed by Google Books falls squarely within the purview of the fair use doctrine. Notably, Judge Chin devoted a significant portion of the decision to discussing the gains that Google Books affords to scholarly researchers and the field of education. Additionally, he quotes several of the amicus briefs that were filed in the case.
This decision represents a solid victory in favor of fair use, generally, and bolsters the causes of education and scholarly research.
Fair use analysis has four factors: (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality used; (4) the effect of the use upon the potential market of the copyrighted work.
Purpose and Character of the Use; Transformativeness
A key factor in the fair use analysis is whether the use of the copyrighted work is transformative, or whether the new work supplants or supersedes the original. While a finding of transformativeness is not required for a use to be fair, where a work is transformative, the factors may tend to weigh in favor of a fair use finding. Here, Judge Chin found that there were several transformative uses, particularly uses that use the words of the original work for a completely different purpose than that of the original, such as for data mining and text mining. These uses serve to open up new fields of research.
This factor weighs in favor or fair use, even when considering that Google Books is a commercial enterprise. The judge found that Google Books did not make efforts to directly commercially profit from the works at issue, either through selling them or putting advertising on the pages.
Nature of the Copyrighted Works
According to the undisputed facts of the case, the vast majority of the books (93 percent) in Google Books are non-fiction, which enjoy a lesser level of copyright protection than works of fiction, therefore tipping this factor toward fair use.
Amount and Substantiality of the Portion Used
While Google Books scans the entirety of a work for its use, that does not necessarily mean that the use is not fair. Judge Chin balanced that full-text scan against the fact that Google limits the amount of text, or snippets, that are viewable in response to a search.
Effect of the Use Upon the Potential Market or Value
The plaintiffs, The Authors Guild, argued seemingly most strenuously on this factor, stating that the Google Books service would serve as a replacement market for the original works. Judge Chin found this argument unconvincing, in light of the undisputed facts, and stated: “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered—whether potential readers learn of its existence. Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays. […] Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves book sales.” Opinion, page 25.
Promoting the Arts and Sciences
The stated goal of copyright is to promote the arts and sciences. Here, Judge Chin notes that not only is the use by Google Books squarely within the realm of fair use, but it also substantially furthers the goal of copyright. Making available books for the purposes of research, scholarly study, and other educational uses undoubtedly furthers the goal of promoting the arts and sciences.
Finally, Judge Chin found that other claims by the plaintiffs, in particular, any allegation of secondary liability due to Google providing digital copies to libraries, would fail due to fair use as well. The libraries were only provided with digital copies of books they already owned, in situations where they originally provided the physical copy for scanning to Google. The judge cites Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445, 460-61, 464 (S.D.N.Y. 2012), which held that the library-defendant’s digitization project fell under fair use. “[I]f there is no liability for copyright infringement on the libraries’ part, there can be no liability on Google’s part.” Opinion, page 28.
The full opinion can be viewed here: Authors Guild v. Google Books, 05-cv-8136 – Summary Judgment Granted for Google Books.