The Second Circuit Court of Appeals in New York ruled on October 16 that Google’s library book scanning project is protected by fair use and so does not constitute copyright infringement. The decision, which rejects the latest challenge in Authors Guild v. Google, a class-action lawsuit first filed in 2005, also held that Google’s provision of digital copies of the scanned books to participating libraries is non-infringing.
The three-judge panel’s vote was unanimous. Judge Pierre Leval’s summary opinion concluded 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 decision was a clear win for Google, despite its intended use of the scanned material for commercial purposes, stating that “Google’s profit motivation does not in these circumstances justify denial of fair use.” Google’s actions did not expose rights holders to loss of revenue, the ruling stated, contradicting what the Authors Guild’s website termed the “damaging effect that uses such as Google’s can have on authors’ potential income.”
“The Authors Guild is disappointed that the Court has failed to reverse the District Court’s faulty interpretation of the fair use doctrine,” Mary Rasenberger, executive director of the Authors Guild in New York, said in a statement following the court’s decision.
Douglas Weston, author and member of the Authors Guild Council, told LJ, “We feel that this is way beyond fair use. They’re copying books in their entirety…. And no one could say that copying an entire copyrighted book is fair use, for commercial purposes, even if they’re not showing all of that book to everyone who wants to see it.”
However, advocates for fair use and the evolving clarification of copyright law in regard to digital material see the ruling as a positive step. Kyle Courtney, copyright advisor and program manager at Harvard University’s Office for Scholarly Communication (and a 2015 LJ Mover & Shaker), said that the decision “will become part of the common law record” for the future. “I think what’s important is that it provides more guidance on what qualifies as fair use in a digital age, and we can’t get enough of that. The move to digital from print has always been something that the law has struggled with.”
A CONTENTIOUS DECADE
Originally launched in 2004, the Google Books project sought to digitize 20 million more books, both in and out of copyright, from participating research libraries. The scanned material would be made available to the libraries that had provided the original texts, and made publicly searchable. Work that was still under copyright would show only snippets in search results, not the full text.
In September 2005 the Authors Guild filed suit, charging Google with copyright infringement and stating that its actions deprived authors of revenue. Google argued that it was helping readers find books and boosting sales. The Authors Guild requested compensation for the use of copyrighted work, and in 2008 proposed a $125 million settlement to be paid out to rights holders.
The settlement would have funded a Book Rights Registry, which would distribute licensing fees to authors somewhat on the model of the music industry’s payment distribution through the American Society of Composers, Authors, and Publishers (ASCAP). “As, for example, in music, radio stations…pay a small amount of money to ASCAP which allows them to play any song they want on the radio, and then ASCAP distributes that money to the musicians,” explained Preston. “It’s a way for musicians to be compensated for the playing of their work. And that’s what we were hoping we could arrange…a system whereby authors could be compensated, in a modest way, for the commercial use of their copyrighted works by Google.” In addition, the settlement would have given Google more extensive use of its scans than had previously been agreed to.
In March 2011, the district court rejected the proposed settlement, with Judge Denny Chin stating that it was unfair to rights holders as a whole and would grant Google a “de facto monopoly,” effectively taking the settlement off the table. The Authors Guild filed an appeal the following October.
The case was dismissed in 2013, at which time Judge Chin ruled in favor of Google, declaring that its program fell under the fair use doctrine. In his ruling, Chin cited some of the public benefits to the Google Books project, including the creation of a large corpus of data that would be made available to scholars, access extended to new audiences, and the potential for the digitized work to create revenue for authors at a future time. The Authors Guild appealed in April 2014, and the hearing was conducted in December before a three-judge panel.
After the settlement was rejected in 2011, the Authors Guild also filed a parallel suit against HathiTrust, a consortium of universities and research libraries that built a searchable online digital library of works scanned by Google. That suit was rejected in June 2014.
FAIR USE PRECEDENT
“Few people are surprised by this decision,” copyright scholar Kenneth Crews, an attorney with Gipson Hoffman & Pancione, told LJ. “I think most expected that the second circuit would rule that the Google Books project was fair use. I think perhaps what was not expected was how broadly the court would define fair use.”
In addition to the decade that the suit has been in progress, the recent ruling has a historic context stretching back 25 years. As a District Court judge in 1990, Leval authored an early and influential law review opinion that coined the term “transformative use.” In this ruling, Leval stressed consideration of the four factors used to determine fair use, with an emphasis on the first—the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes—and the fourth—the effect of the use upon the potential market for or value of the copyrighted work.
Kevin Smith, director of the Office of Copyright and Scholarly Communication at Duke University, applauded Leval’s application of the fair use criteria, writing in his blog, “[W]hile reading the opinion in this case I was struck by how well the four fair use factors were handled, in a way that showed that the test used by Judge Leval respected all of the factors while essentially applying two basic questions—is the use transformative and does the new work create a market substitute for the original?”
However, University of Maryland professor of law James Grimmelmann pointed out to LJ, “It’s very interesting that [Leval] makes some gestures to illustrate that this is not an unbounded blank check for fair use to expand in ways that would threaten traditional markets.” Now, he added, “this open area of bulk technological fair use is…pretty clearly close to categorically fair.”
In addition, Grimmelmann noted, Leval’s argument about licensing markets has precedent in the Second Circuit, drawing in large part from a 1994 New York Second Circuit Court of Appeals fair use ruling that Texaco’s copying of scientific journal articles constituted copyright infringement. “Texaco…is the [case] that really stands for the idea of licensing markets as an important one that copyright holders can exploit.”
LOOKING AHEAD
The ruling holds future value not just for Google, noted Crews, but for universities and other research institutions. “To a great extent what this case now stands for is the ability to use existing copyright and works in order to build new kinds of tools.” Crews added, “While Google is obviously a big company with the resources to be able to create a vast database and provide public access to it, I think that this decision will inspire researchers and others to create smaller projects.”
The emphasis on transformative use will benefit libraries as well, Crews explained. “I think this decision will encourage libraries…to create digital projects where the purpose is not simply to read or see or hear whatever the content might be, but for purposes of organizing, searching, indexing, coordinating, and perhaps even preserving the content for future utility. So this case may well inspire libraries to create smaller projects and other creative projects that will help researchers get access to the content that’s in their collections.”
American Library Association (ALA) president Sari Feldman said in a statement, “The Court’s decision today does much more than affirm the critical importance and clear legality of digitally indexing books on a large scale as fair use, hugely important as that is. The ruling’s broader and potentially landmark legacy is that vague fears of speculative harm due to possible copyright infringement cannot and must not be permitted to deprive every sector of our society of the very real and identifiable benefits of fair use and other legal limits on copyright. In other words, the assumption that maximum restriction in copyright is the path to maximum benefit which for too long has animated U.S. copyright policies, laws and treaties has been soundly and rationally rejected.”
In its October 16 press release, the Authors Guild stated, “We are disheartened that the court was unable to comprehend the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, our literary heritage. We trust that the Supreme Court will see fit to correct the Second Circuit’s reductive understanding of fair use, and to recognize Google’s seizure of property as a serious threat to writers and their livelihoods, one which will affect the depth, resilience and vitality of our intellectual culture.”
While the Authors Guild’s decision to bring the case to the Supreme Court is not surprising, it remains to be seen whether the higher court will take it on. As Courtney noted, “There’s no circuit split here. There’s no dissent to examine. It’s a clear victory on one side; I don’t think the law needs to be rewritten here.”
Courtney also pointed to part of the definition of fair use in Leval’s decision affirming the party that truly stands to benefit from this decision: “Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”