[co-author: Elizabeth Stamoulis]

On November 15, Judge Chin of the Southern District of New York issued a long-awaited decision in the Google Books case, Authors Guild, Inc. v. Google Inc. Google Books—the project through which Google provides access to over twenty million books to the public—obtained some of its books from libraries without permission from the copyright owners. When a library allows its books to be scanned, Google provides full digital copies of those books to that library only. Books scanned from libraries that are not in the public domain can otherwise only be viewed by the public in “snippets,” or small, verbatim excerpts.

The plaintiffs originally filed their class action eight years ago alleging that Google’s scanning and digital display of books without permission infringed the owners’ copyrights. They alleged Google infringed by unauthorized reproduction (by scanning the books); unauthorized distribution (through the provision of full digital copies to the libraries); and unauthorized display (through the display of snippets of the books to the public). Judge Chin rejected an initial settlement agreement on the grounds that it was not a fair resolution of the class action, and the case continued with a fight over two issues: (1) whether the plaintiffs were certifiable as a class; and (2) whether Google’s actions were protected under the fair use doctrine. The Second Circuit concluded that resolving whether the fair use defense applied might inform or even moot the class certification issue, and it remanded the case to the Southern District on the issue of fair use.

Section 107 of the Copyright Act, identifies “criticism, comment, news reporting, teaching. . ., scholarship, or research” as purposes for which there is not an infringement of copyright, along with four factors to consider in this determination. Judge Chin found that Google’s use of the books “provides significant public benefits” by allowing readers and researchers to efficiently find books, advancing the progress of the arts and sciences and striking a balance between the rights of authors and other individuals. He also found that the ability for Google Books to facilitate search made it transformative use, just as thumbnail images to facilitate search had been found to be transformative by the Ninth Circuit. A summary of the discussion of each of the four factors is here:

• The Purpose and Character of the Use – Judge Chin found Google’s use to be transformative because digitization helps people find books and search their text, rather than a use for expressive purposes. The fact that Google is a commercial enterprise did not prevent this factor from weighing in favor of fair use because Google did not sell the scans or the snippets and did not run ads on the books’ information pages. This first factor weighed strongly in favor of fair use.
• The Nature of the Copyrighted Works – The fact that the vast majority of the works at issue were nonfiction and the fact that all of the works were published weighed in favor of fair use.
• Amount and Substantiality of the Portion Used – Although Google did scan the full text of the books, this factor weighed only slightly against a finding of fair use because scanning the entire book was necessary for Google’s search functionality and because Google limited the amount of text displayed through the use of snippets.
• Effect of Use Upon Potential Market or Value – This factor weighed strongly in favor of a finding of fair use because Judge Chin found that Google Books actually enhanced the market by increasing the audience for books.

Judge Chin’s broad approach to fair use may embolden companies whose public benefit lies in the use of technology for the betterment of society. Although, this story is not quite over yet—the Authors Guild has already announced its plan to appeal the decision. We’ll keep on reading, as the future of this case is sure to be a page-turner.