Google’s practice of digitally copying books for its Google Books program has been found to not violate the authors’ copyrights in the copied books due to the "fair use" doctrine.  The Court’s decision turned heavily on the fact that Google Books presents only snippets of the books, the program does not erode the market for the original books, and it provides a valuable research tool to the public.  The case was decided on summary judgment after the Court rejected a proposed class action settlement that the Court found to be unfair.  During the pendency of the case, the Second Circuit also vacated the class certification in the case with an order to first consider summary judgment of fair use.

First started in 2004, Google Books scans books and then makes them available through its search engine for free.  Of the more than 22 million books that Google Books contains, only 2.5 million books are displayed in whole or in part with permission of the copyright owner (45,000 different copyright holders have granted Google permission for those 2.5 million books).  The remaining 20 million books were scanned from libraries, who in return received digital versions of those books for use in their own libraries.  However, neither Google nor the libraries received permission from the copyright holders for this use. 

In examining whether Google’s use was “fair use,” the Court first looked to the general purpose of “fair use” which is “to promote the progress of science and useful arts.”  The Court then looked to the four factors enumerated in 17 U.S.C. § 107: (1) the purpose or character of the use, and whether it was transformative; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used in relation to the whole of the work; and (4) the effect of the use on the value of the copyrighted work. 

For the first factor, the Court found that Google’s use was transformative of the original copyrighted works.  Google first digitizes a work but copyrighted works are only available as “snippets” which do not show the entire content of the copyrighted work to the end user.  The Court found that the use of these “snippets” was analogous to the display of “thumbnail” images of copyrighted images, which has previously been found to be “fair use.”  The Court also found that digitizing the books was transformative by allowing the books to be digitally searched and available for “data mining” or “text mining” for research, which allowed the scanned books to be used in a way they could not previously have been used.  The Court found that these uses do not replace books, but instead add a new dimension to books which is transformative.  The Court found that even though Google’s primary motivation may be profit, this particular use is more educational as Google does not engage in direct commercialization because it does not sell the scanned images.

For the second factor, the Court found that the since the majority of the books scanned were non-fiction books, this tended to show “fair use.”  The Court and all the parties also acknowledged that this factor is rarely determinative to a “fair use” determination.  

For the third factor, the Court found that even though Google scanned entire copyrighted works, this did not per se mean that the use could not be “fair use.”  While entire works were scanned by necessity to allow full searching, the full text of books is not displayed in the search result.  The Court found that this resulted in the third factor slightly weighing against “fair use.” 

Finally, the Court weighed the effect of Google Books on the market for the scanned books.  The Court found that Google Books cannot act as a replacement for the copyrighted works because a user cannot read the entirety of the work because Google Books only displays the “snippet” portions of the books.  The Court found that Google Books should actually enhance the market for individual books, as users who find “snippets” on Google Books may want to buy the entire work; in essence Google Books is acting as free advertising for the book. 

The Court found that the second and third factors canceled each other out, but the first and fourth factors weighed strongly in favor of “fair use.”  In addition, the Court found that the public benefits to researchers, librarians, teachers, and students in allowing research and preserving older books from degradation served the purpose of “fair use” and benefited society.

The Court also found that even though Google does make the full text of the scanned images available to the individual libraries that provided books, this was also “fair use.”  The libraries already own the books; Google merely digitizes them.  This allows the library to use the digital copies in ways that “advance the arts and sciences” such as creating their own full text databases, preserving older books, and making books available for “print-disabled” individuals. 

The case is Authors Guild, Inc. v. Google Inc., SDNY, No. 05-8136 (11/14/2013).