If you know your Internet memes, you may already have rolled your eyes at the title above. If you don’t get the (dated, I admit) reference, you can, of course, just google it. That “of course” is Google’s strategic vision in action—to render as much of the world as possible easily searchable. Google’s pursuit of that vision recently got a big boost when Judge Denny Chin of the Second Circuit Court of Appeals, sitting by designation in the Southern District of New York, granted summary judgment to Google in a long-running copyright suit arising out of Google’s “Google Books” service. See Authors Guild, Inc. v. Google Inc., --- F. Supp. 2d ---, 2013 WL 6017130 (S.D.N.Y. Nov. 14, 2013).
The Authors Guild Objects to Google’s Industrial-Scale Copying
The suit arose out of Google’s “Library Project,” in which it reached agreements with a number of research libraries to permit Google to digitize effectively their entire book collections. In return, the libraries would obtain digital versions of their books at no costs to themselves, which they could then use for research, to backup their collections, to protect fragile books, or to create disabled-accessible versions that did not exist in the marketplace. In all, Google accumulated digital copies of more than 20 million books, both in and out of print, including more than 4 million English-language books still in copyright.
Google then combined these digital copies with other books it had obtained with the permission of the rights holders to create its publicly accessible “Google Books” database. Using Google Books, any Internet user may conduct full-text searches of all the books scanned by Google. In response to queries, Google Books displays a list of books in which the search terms appear. A further click shows the viewer an “About the Book” page, with more specific information about the book, and frequently includes an image of a “snippet” from the book, part of a page that shows the context in which the search term occurs. For works still in copyright, Google does take some security measures to prevent recovery of the entire book—only a limited number of snippets are viewable, at least 10 percent of the work’s pages are blacklisted, with no snippets on those pages viewable, and Google claims that it will not show snippets of books if it receives an opt-out request from the rights holder. Nonetheless, Google Books uses a complete copy of each book to search for matches to user-generated search terms.
Unsurprisingly, the Authors Guild, a nonprofit promoting the interests of authors and publishers, brought a class action lawsuit against Google in 2005 over its copying and partial display of its members’ copyrighted works. (The Authors Guild also sued the libraries cooperating with Google in a separate action; it lost that case a year ago, also on summary judgment, and is appealing it to the Second Circuit. See Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012).)
The Court Refuses to Approve the Parties’ Settlement and the Second Circuit Directs Early Consideration of the Fair Use Issue
Although Google took the position that its use of the plaintiffs’ books was protected fair use, the parties spent several years in settlement talks and eventually proposed a complicated class settlement (166 pages of heavily cross-referenced legalese counts as complicated in anyone’s book). It was based on a opt-out class of rights holders and granted Google a release from future liability that, some critics thought, went well beyond the claims raised by the Authors Guild and would have granted Google privileges that other search engines would not share. Among those disapproving critics was Judge Chin, who refused to approve the settlement and instead certified a class of authors for trial. Google, however, appealed the class certification to Judge Chin’s colleagues on the Second Circuit, arguing that its fair use defense should be given a hearing before trial. The Second Circuit panel agreed with Google, vacated the class certification, and remanded the case with instructions to consider Google’s fair use defense. It likely didn’t hurt Google’s arguments that the Second Circuit panel included Judge Pierre Leval, who authored a seminal work on the fair use doctrine. See Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).
Accordingly, the parties filed cross-motions for summary judgment before Judge Chin, addressing the statutory fair use defense. The Authors Guild emphasized the obvious point that Google was, undeniably, engaging in the wholesale copying and verbatim reproduction of large sections of literally millions of copyrighted works for a commercial motive. Google’s response was very simple—its Google Books search engine did not substitute or supplant the reading of the plaintiffs’ books; to the contrary, it facilitated that goal by creating an enormously powerful index/card catalog that allowed readers to find books that matched their interests. According to Google, no one could read all of an in-copyright book on Google Books, so readers still needed to obtain an authorized copy of the book, but the public could now quickly identify books that contained the keywords that interested them and then see how those books used those books in context.
Google Books Is Transformative Because It’s Incredibly Useful—But Not for Reading Books
In short, Judge Chin assumed that the Authors Guild had proven a prima facie case of copyright infringement, but then agreed with Google on every important point of its fair use defense. His opinion carefully considers each of the (non-exclusive) statutory factors in 17 U.S.C. § 107—the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the use’s effect on the potential market for the original—but the outcome was clear when Judge Chin devoted several pages of his opinion’s fact section to a detailed list of Google Books’ many benefits to society. In fact, Judge Chin even noted that Google Books would benefit authors and publishers because it offers users links to sellers of books still in print or libraries that own the book, potentially expanding the market for the plaintiffs’ creations. Legally, however, the crucial underpinning of Judge Chin’s fair use reasoning was his finding that Google’s use of copyrighted works was “highly transformative” because it transformed expressive text into “a comprehensive word index that helps readers, scholars, researchers and others find books” but was nonetheless “not a tool to be used to read books.”
Judge Chin found particular support for his decision in two fair use decisions from the Ninth Circuit dismissing claims against search engines that had shown “thumbnail images” of copyrighted material in response to searches. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). In those cases, however, the search engines were locating and reproducing digital materials that the rights holders had uploaded to the Internet. Google’s conduct, however, arguably went a step further in that Google actively sought out non-digitized materials under copyright, digitized them (in job lots), and then made them available (albeit in partial form) to anyone with an Internet connection. Judge Chin’s decision is therefore another step down a road leading to Google’s vision of a digitized and searchable world—even copyright law, it seems, is no obstacle to Google’s Borg-like tendencies.
Resistance Is Futile (So Far); You Will Be Assimilated
The Authors Guild will undoubtedly appeal this decision to the Second Circuit and it seems plausible that the Supreme Court may eventually weigh in as well on whether such fair use allows the reproduction of copyrighted material on such a massive scale. In the interim, however, those who create, own, or use copyrighted material of any kind should expect that Google and other search engines will continue to copy and repurpose anything that appears on the Internet—and if any rights holders carelessly fail to upload a searchable digital version of their creations, some helpful business is likely to go ahead and do it for them. And while it remains to be seen whether this trend will benefit authors and publishers as much as Judge Chin suggests, Google Books and similar projects will certainly prove popular with those who use or consume copyrighted material, which is, by most counts, all of us.