Google’s Right To Create A Publicly Available And Searchable Books Database Is Upheld Under The Fair Use Doctrine

Diana Uhimov, February 12, 2014.

After an eight-year battle, Google recently prevailed in a copyright infringement case brought against it by the Authors Guild, in Authors Guild v. Google. Second Circuit Court of Appeals Judge Denny Chin approved Google’s use of its digital book library, which is available to the general public for searching in an online database. Since 2004, Google has scanned more than 20 million books, making excerpts of text viewable online, under agreements with several research libraries to digitize their collections as part of its Google Books project. Authors Guild sued Google because it failed to obtain permission from the copyright holders. However, the court dismissed the case on the basis that Google’s use of the material was fair.

The U.S. Copyright Act grants copyright holders the exclusive right to reproduce, create new versions, distribute, perform, and digitally transmit performance of the work publicly. But these rights are not absolute. One limit on the exclusive rights of copyright holders is the fair use doctrine. This doctrine permits the fair use of copyrighted works in order to further the objective of copyright law of promoting science and the arts. Copyright protection extends to the creator’s original manner of expression, rather than the particular ideas or facts conveyed, in order to incentivize creation, while preserving important information for the public domain.

The fair use defense has gained traction with the rise of digital media. It was raised, without success, in file sharing cases such as A&M Records v. Napster and Metro-Goldwyn-Mayer Studios v. Grokster. File sharing occurs when software connects users to a network that enables them search for shared files on the computers of other users on the network. Desired files can then be downloaded by network members. Now, however, the defense has been strengthened for online content providers.  The Google ruling has effectively sanctioned other results that are displayed in a Google search, including images and news, and also invites competition to the market. According to James Grimmelmann, a University of Maryland intellectual property law professor, this opinion means that users are within the bounds of the law provided that they are not revealing to viewers all of the copyright-protected content, but merely show where to find content or state what you learn about it. This is also a win for libraries and scholars, who staunchly supported Google Books by intervening in the case on its behalf.

Nonetheless, it is important to note that whether or not an action constitutes fair use under copyright law remains a fact-specific inquiry. Several commonly mistaken beliefs about fair use can give rise to user liability, such as the idea that taking a particular number of words from copyrighted works, or that using the works without financial gain, constitutes fair use. In fact, courts always evaluate the following four factors to determine whether the use of a work is permissible under the fair use defense:

1. Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. Nature of the copyrighted work;

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. Effect of the use upon the potential market for or value of the copyrighted work.

The first factor is considered to be central to the fair use inquiry. Key to Judge Chin’s finding that Google’s digital library constitutes fair use was that its digitization was “highly transformative,” meaning that it added something beneficial or used the works differently, by offering an efficient way to find books and making them accessible to a wider audience. Chin acknowledged that Google benefits commercially from its use of books by increasing traffic to its sites, but since it does not profit directly from the books, he found that the first factor weighed strongly in favor of fair use. Generally, the commercial use of copyrighted works tends to preclude a finding of fair use. But if a work is considered transformative, fair use has been found even where an alleged infringer profited from unlicensed use. Another recent Second Circuit case, Cariou v. Prince, found fair use despite commercialization of the work, when it held that 25 of 30 photographs the defendant modified were transformative, giving Cariou’s photos a new expression, and utilizing new aesthetics with distinct creative results.

The second factor, which is rarely determinative, favored a finding of fair use given that most of the books were non-fiction.  Use of non-factual, creative, or unpublished works weighs against a finding of fair use. The third factor weighed against fair use, but only slightly. Although Google scans the entirety of the books, it limits the portions it displays for each search by employing snippets and blank pages. Finally, the fourth factor supported fair use because, contrary to Authors Guild’s arguments that Google Books would be a “market replacement” for books, it would actually boost sales by providing a new way to discover them.

Hard line copyright advocates may disagree with this decision, but it has bolstered the principle of fair use. As a result, it makes it easier for the public to locate books, while simultaneously demonstrating respect for authors’ rights. The Authors Guild has filed a notice of appeal in this case.