After Long Battle, Google Books Ruled “Fair Use”

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Google BooksWhen last we looked in on the Google Books dispute, the Second Circuit had overturned class certification in the suit, brought by the Authors Guild and multiple individual authors, on the basis that the District Court first should have resolved Google’s fair use defense, which could moot the class certification issue.  Last week Judge Denny Chin, still presiding over the Google Books dispute by designation, ruled that the copying envisioned by the Google Books project was protected under the fair use doctrine.

As we have reported, Google Books is an ambitious web project that aims to scan, digitize and distribute “every book ever written” and make the contents searchable.  Where Google has the rights to do so through its “Partner Program,” books are available for viewing in whole or in part.  Otherwise, through its “Library Project,” Google Books allows full-text searching for in-print and out-of-print books, and provides excerpts of content, called “snippets,” all without the permission of the copyright owners.

In his ruling, Judge Chin applied the four fair use factors enumerated in the U.S. Copyright Act,  17 U.S.C. § 107.  First, he evaluated the “purpose and character of use” of the copyrighted materials, finding that Google’s use “transforms expressive text into a comprehensive word index,” and has “transformed book text into data for the purposes of substantive research” such that “[w]ords in books are being used in a way they have not been used before.”

Second, Judge Chin briefly assessed the “nature of the copyrighted works,” noting that the “vast majority” of the books are non-fiction, and that most of the books are otherwise already available to the public, both points which favor a finding of fair use.

Third, the Court looked at the “amount and substantiality” of the portion of the copyrighted works used by Google.  The Court noted that Google scans the books in their entirety.  However, in circumstances where copying full works is critical to the greater, transformative purpose — here, providing a full-text search engine — courts have held that copying full works may yet constitute fair use.  While it is significant that Google limits the amount of text it actually displays in response to a search, Judge Chin concluded that this factor weighed “slightly against” a finding of fair use.

Finally, Judge Chin evaluated the “effect of use upon potential market or value” of the copyright works.  The Court rejected the plaintiffs’ argument that Google Books would serve as a “market replacement” for the books, because Google does not sell its scans.  The Court also rejected the argument that users could input multiple searches, piecing together snippets to form an entire book.  Not only would this take an inordinate amount of time and energy, but Google’s own security measures “black-list” pages and snippets throughout the books to prevent such piecemeal copying.  Further, a user would have to possess a copy of the book to determine how to arrange the pieces.  Judge Chin found that, to the contrary, “Google Books enhances the sales of books to the benefit of copyright holders,” and it provides a way for books to become noticed in the first place.

In light of these factors, Judge Chin determined that Google Books “advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, without adversely impacting the rights of copyright holders,” found that such use was “fair,” and granted Google’s summary judgment motion.  The full text of the opinion is located here.

For its part, the Authors Guild plans to appeal to the Second Circuit, so this saga may yet continue.  Stay tuned!


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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