Google Books Is Fair Use and Provides “Significant Public Benefits” - Authors Guild, Inc. v. Google, Inc.

by McDermott Will & Emery

Since 2004, the Google Books project has scanned over 20 million books and has provided digital copies of the books to participating libraries while also creating a searchable database of books. The Google Books database returns relevant search results in an “About the Book” summary or in viewable “snippets” of portions of the book pages. Since 2005, however, the Google Books project has been the subject of a class action filed by The Authors Guild, the nation’s largest organization of published authors, charging Google with copyright infringement.

A settlement proposed by the parties was rejected by Judge Denny Chin of the U.S. District Court of the Southern District of New York (Judge Chin is now an appellate judge for the U.S. Court of Appeals for the Second Circuit) on the grounds that the settlement was unfair. After further litigation and unsuccessful settlement attempts, the case continued pertaining only to the issues of proper class certification and whether the Google Books project was protected by the fair use defense under Section 107 of the Copyright Act. Noting that resolution of the fair use defense could preclude the need to review the issue of class certification, the case was remanded to the district court and Judge Chin granted Google’s motion for summary judgment holding that the reproduction, distribution and display of the content of books without the prior authorization of rightsholders is fair use. Authors Guild, Inc. v. Google, Inc., Case No. 05 Civ. 8136, (SD NY, Nov. 14, 2013) (Chin, J., sitting by designation).

In his decision, Judge Chin reviewed the four fair use factors codified in § 107:

The Purpose and Character of the Use of the Copyrighted Work

Stating that the first factor “strongly favors a finding of fair use,” the court concluded that Google Books is “highly transformative” because it helps researchers, readers, librarians and others to locate books, and it has greatly contributed to substantive research by allowing “text mining” across millions of books. Furthermore, because Google Books is not a tool for reading full texts, the court noted that the technology does not “supersede or supplant” the original books. The court also equated the use of visible “snippets” of the books to that of “thumbnail images,” which have previously been deemed to be transformative uses of copyrighted works for facilitating searches.

The court was also quick to point out that fair use could be found despite Google Books being a commercial enterprise. In particular, the court explained that Google does not sell the scanned books or snippets and Google does not run advertisements on its “About the Book” pages.

The Nature of the Copyrighted Work

Because all of the books scanned into the Google Books project are published works that are already available to the public, and because the “vast majority” (approximately 93 percent of the books) of the scanned books are non-fiction works which are entitled to less copyright protection (as compared to fictional works), the court found that the second factor favors fair use.

The Amount and Substantiality of the Portion used in Relation to the Work as a Whole

Due to the fact that Google Books scans the full text of books, the third factor was the only factor the court found to weigh “slightly” against the fair use defense. Nevertheless, because Google limits the amount of text displayed in the search return “snippets,” and because the full reproduction of the books is essential to the function of Google Books, this factor did not defeat the fair use defense.

The Effect Upon the Potential Market for the Copyrighted Work

Finally, the court found that Google Books is not a “market replacement” for the underlying copyrighted works, and held that the fourth factor weighed “strongly in favor” of fair use. In particular, the court noted that “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.” The court decided that this was especially true since the Google Books “About the Book” pages provide links to booksellers so that users can purchase the books they locate via their search queries.

Overall, the court found that Google Books provides a significant public benefit without adversely impacting the rights of copyright holders, and granted Google’s motion for summary judgment.

Practice Note: It will be interesting to see if courts in other jurisdictions will consider Judge Chin’s decision authoritative in future cases, limited to class action certification issue presented by The Authors Guild, the named plaintiffs and the identified works.

Written by:

McDermott Will & Emery

McDermott Will & Emery on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.