2nd Circuit Rules Google’s Massive Book-Scanning Project is a Fair Use
Google’s quest to assemble an enormous digital library of books got a big boost from the 2nd Circuit Court of Appeals in Authors Guild v. Google, Inc. The key issue in this longstanding legal battle was whether Google could scan the works still under copyright and make “snippets” of these digitized works available to the public for free. The Authors Guild claimed that Google’s assembly of this online library—which exceeds 20 million scanned books—would deprive the authors of revenue because people would no longer have the need to purchase the original work. Google argued otherwise, claiming that providing “snippets” of the work in a digital format transformed the underlying work that would not harm the market for the original. The trial court held that Google’s project was a “fair use.”
Judge Pierre Leval—known for his copyright prowess—wrote the opinion for the unanimous three-judge panel of the Second Circuit Court of Appeals. Judge Leval observed that “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.”
Based on this rationale the Court held that:
“(1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.”
The Court’s decision is another reminder about the fact-specific nature of any fair use inquiry. It also illustrates that although there are four fair use “factors” embodied in Section 107 of the Copyright Act, the two factors that to rise to top and figure most prominently in the Court’s analysis are: (1) the transformative nature of the “infringing” work; and (2) whether the defendant’s use will impair the market value for the underlying work.
In a statement, Google spokesman Aaron Stein said the project is like a “card catalog for the digital age.”
He also mentioned that “[t]oday’s decision underlines what people who use the service tell us: Google Books gives them a useful and easy way to find books they want to read and buy, while at the same time benefiting copyright holders.”