Google Books is “Fair Use” of Millions of Books

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After years of litigation and uncertainty, the United States District Court for the Southern District of New York ruled that the Google Books project fits within the “fair use” exception to copyright law and cleared Google of copyright infringement claims by book authors and publishers.  Many predicted copyright infringement lawsuits when Google announced plans to scan and digitize millions of books without obtaining the permission of the author or copyright owner.  Sure enough, in 2005, some authors (including Jim Bouton and Betty Miles) and the Author’s Guild brought a class action lawsuit against Google for copyright infringement.  Google maintained from the beginning that its project fit within the fair use exception.  In The Author’s Guild v. Google, the court agreed and dismissed the case against Google.

This case arose in 2004 when Google announced two programs aimed at digitizing millions of books: the Partner Program and the Library Project.  The Partner Program was aimed at helping publishers and other rights holders with increased visibility for their books.  Google obtains the permission of the rights holder for this program.  Google has scanned over 2.5 million books under this program.

The Library Project made a digital copy of books provided by libraries such as the Library of Congress and the New York Public Library, indexed all of the words in each book, and gave a digital copy back to the library that provided the book while maintaining a copy for the project.  Google does not obtain the permission of the rights holder for the Library Project.  Google has scanned more than 20 million books under this project.

Ninety-three percent of the books scanned are non-fiction; the majority of the books scanned are out-of-print.  A search for terms or subjects in Google Books will return a list of books and display up to three“snippets” consisting of an eighth of a page from each work.  It is impossible to obtain an entire book by searching Google Books because it omits at least one snippet from each page and every tenth page.

The court emphasized that Google Books (1) is a tremendous resource for readers and researchers to find books, stating that “Google Books has beome an essential research tool;” (2) expands access to books; (3) preserves books for the future, including “out-of-print books that are falling apart;” and (4) helps authors and publishers because it assists readers and researchers in identifying books.  The site provides links to booksellers and libraries for each volume in the database.

The court assumed that plaintiffs had made a prima facie case of copyright infringement, and then turned to the fair use exception, explaining that the exception was designed to allow the fair use of copyrighted materials to “fulfill copyright’s very purpose to promote the Progress of Science and useful Arts.”  The court then analyzed the facts against the four factors of the fair use doctrine.

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.  The court noted that one of the key analysesfor this factor is whether the work is transformative, i.e.,“adds something new, with a further prupose or different character, altering the first with new expression, meaning or message.“  The court found that Google’s use of the works is “highly transformative” because it digitizes books and transforms expressive text into a comprehensive word index that assists readers, scholars, researchers and others find books.  The court held that Google Books does not supersede the books because it can not be used to read the books; instead it adds value to the original by allowing the creation of “new information, new aesthetics, new insights and understandings.”  The court discounted the fact that Google is a for-profit business with the fact that it does not charge for the search results or directly “commercialize” the copyrighted works.  The court found that this factor strongly favored a fair use finding.
  2. The nature of the copyrighted work.  Since most of the books are non-fiction, they are not entitled to the higher standard applicable to works of fiction.  Further, the books are published and available to the public.  The court found that this factor favored a fair use finding.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.  Google copies the entire work, but limits the amount of text displayed per search.  The court found that this factor weighed slightly against a fair use finding.
  4. The effect of the use upon the potential market for or value of the copyrighted work.  The court found that Google Books enhances the sale of books to the benefit of copyright holders, and that this factor strongly favored a fair use finding.

Based on its review of these factors, the court found that Google Books was a fair use of the copyrighted works and dismissed the copyright infringement suit.

The Author’s Guild has appealed the decision, but it still serves as yet another analysis of the fair use doctrine.  Congress is holding hearings on the fair use doctrine and the Supreme Court has copyright cases before it, so stay tuned for more.

Topics:  Copyright, Fair Use, Google Books

Published In: Communications & Media Updates, Intellectual Property Updates, Science, Computers & Technology Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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