In 2004, Google announced a project that, at the time, seemed audacious: a universal library, searchable online. Book lovers rejoiced. “This is our chance to one-up the Greeks!” one archivist said (echoing what the rest of us were all surely thinking). But lawyers did what we do best: worried.
Sure, the idea—now known as Google Books—was cool. But was it legal? After all, some of the books were copyrighted. Google planned to show only snippets of the books, something its lawyers described as a “fair use.” But the publishing industry had another name for the snippets: copyright infringement.
Nine years and more than 2.5 million books scanned later, we finally have an answer. In a landmark ruling earlier this month, a federal judge sided with Google.
The judge ruled that the searchable snippets were a “fair use” of the copyrighted works.
In doing so, the judge conducted a familiar—to intellectual property lawyers and readers of this blog, at least—four-factor analysis:
• The Purpose and Character of the Use: This factor strongly favored Google. The judge found that the purpose of the use wasn’t to make money—Google doesn’t run ads next to the snippets—but to allow “substantive research, including data mining and text mining in new area, thereby opening up new fields of research.”
• The Nature of the Copyrighted Books: This factor favored Google. The judge found that the content of the books already was available publicly because the books were published and (mostly) non-fiction.
• Amount or Substantiality of Portion Used: This factor slightly favored the copyright holders. The judge found that, although Google only offers a snippet of a book, it scans the full text and makes the entire book searchable.
• Effect of Use upon Potential Market or Value: This factor strongly favored Google. The judge found that Google Books “enhances the sales of books” because it “provides a way for authors’ works to become noticed.”
Taken together, the judge found that these factors showed that Google’s use of the copyrighted works was “transformative”—that is, it added “something new.”
Before book lovers turn their library cards into confetti, a note of caution: the copyright holders vowed to appeal.
