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Google Books: A Transformative Fair Use

On October 16, 2015, the United States Court of Appeals for the Second Circuit released its decision in the “Google Books Case” (Authors Guild Inc. v. Google Inc., No. 13-4829-cv) affirming the District Court’s ruling (954 F. Supp. 2d 282 (S.D.N.Y. 2013)) that Google’s unauthorized digitization of copyright-protected works, and Google’s search and snippets functionality, constitute transformative fair use under 17 U.S.C. § 107.

The Appellant copyright holders initiated the underlying class action asserting that Google’s Library Project and Google Books search function constitutes unauthorized use of the their works resulting in direct and contributory copyright infringement.

Google’s Library Project and Google Books

Google has digitized and catalogued more than 20 million books pursuant to bi-lateral agreements with a number of the world’s major libraries. Google allows participating libraries to download and retain digital copies of any books they submit, provided the libraries agree to use the digital copies in accordance with copyright law. Google retains the original scanned images.

Google also developed a publicly available search engine, called Google Books, which enables Internet users to search a book for keywords and read “snippets” of text containing the terms to provide the reader context.

Google Books Constitutes Transformative Fair Use

The Second Circuit held that Google’s unauthorized digital copying, for the purpose of providing the public with its search and snippet view functions, is fair use and does not infringe the appellants’ copyrights. The search and snippet view functions are “transformative” because they provide the public with previously unavailable resources: providing important context around keywords, enabling data and text mining, and enabling researchers to examine information on the development of languages.

Despite Google’s overall profit motivation, the Court held that Google’s unauthorized digital copying enhances the public’s knowledge of the copyrighted material, rather than acting as a substitute for that material. Google safeguards against use of its copies as a substitute included a robust security system, the small size of the snippets, the limited viewing capabilities through its “blacklisting” software, and the fact that the same snippets are consistently shown for each search term.

The Second Circuit noted that the “ultimate goal of copyright is to expand public knowledge and understanding… Thus, while authors are undoubtedly important beneficiaries of copyright, the ultimate, primary intended beneficiary is the public…” The doctrine of fair use furthers copyright’s very purpose, which is to “promote the Progress of Science and useful Arts.”

 The Second Circuit also rejected the copyright holders’ argument that they had derivative rights in Google’s search and snippet function, emphasizing the difference between derivative works and transformative fair use. The author of an original work may enjoy exclusive rights in a derivative work i.e. the conversion of a novel to a film. However, a transformative work creates something new and different from the original expressive content.

Finally, the Second Circuit held that Google’s provision of digitized copies to libraries, on the understanding that the libraries’ use of those copies would comply with copyright law, does not constitute contributory infringement.

A copy of the reasons may be found here.