2nd Circuit Affirms Google Books Fair Use Ruling

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By Blake Brittain

Oct. 16 — Google Inc.'s function allowing the online search of the text of millions of books, and the viewing of specific snippets of those books, without author permission, is transformative and protected by the copyright law doctrine of fair use, the U.S. Court of Appeals for the Second Circuit ruled Oct. 16.

“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,” Judge Pierre N. Leval said.

Many copyright experts praised the decision as a prudent application of the fair use doctrine by Leval, who Washington-based copyright lawyer Jonathan Band said was “the federal judiciary's foremost expert on fair use” and the originator of the transformative use concept.

Google Books

Google Books began with the company's Library Project, which involves a series of bilateral agreements between Google and major research libraries. As part of this project, libraries submit books from their collections to Google to scan into a database.

Google Books allows users to search the text of the over 20 million books within the database for a list of all books in which specific words appear.

The service also allows users to view a maximum of three “snippets” within the book—normally amounting to one-eighth of a page each—where the words appear.

In 2013, the U.S. District Court for the Southern District of New York ruled that Google's uses of the books were transformative and therefore protected by fair use, dismissing the case brought against Google by the Authors Guild, Inc., on behalf of authors whose books Google had digitized without permission.

Four-Factor Test

The Second Circuit analyzed the legality of the search and snippet view functions using the four fair use factors from Section 107 of the Copyright Act: the purpose and character of the use, the nature of the copyrighted works, the amount of the works used, and the use's effect on the market value of the works. 17 U.S.C. § 107.

The “purpose and character” of the use is usually the most important factor, and typically focuses on whether the use is transformative.

The court said that Google's book search function was “highly transformative” because it was meant to “make available significant information about those books,” not the books themselves. It said that the snippet view function was also transformative, because it was “designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest.”

The court also said that while Google was a private company with commercial motivations, the transformativeness of Google Books outweighed this concern.

The court said that the amount and substantiality of the works used also favored Google.

Even though Google made copies of entire books, it only enables search functions “to reveal limited, important information about the books,” the court said. Also, the “snippet view” function does not allow users to view enough of any book to make it “a competing substitute for the original,” it said.

Finally, the court said that Google Books did not have a strong effect on the potential market for the books, and that any losses Google Books may cause would relate to interests unrelated to copyright.

“Even if the snippet reveals some [copyright-protected] authorial expression, because of the brevity of a single snippet and the cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view, we think it would be a rare case in which the searcher’s interest in the protected aspect of the author’s work would be satisfied by what is available from snippet view,” the court said.

The court rejected the Authors' Guild's arguments that:

•  the authors had a “derivative right” in the application of the search and snippet view functions to their works,

•  Google Books exposed the authors' books to hacking risks, and

•  Google's distribution of the digital copies to libraries exposed the books to risks of loss.


Looking to the Future

Experts said that this decision is a landmark ruling in copyright law, and will be instructive for future attorneys.

“The Court's decision should be carefully read—not just by law students in the United States but all over the westernized world —as principles of fair use begin to travel outside the United States, where copyright law in many countries has just begun to adopt these fundamentally important principles,” Josh Schiller of Boies Schiller & Flexner LLP, New York, said in an e-mail.

The decision could also have significant practical effects, encouraging entities to create similar services providing digital catalogs of other copyrighted works, observers said.

“I think the long term effects could be significant. It could open the door for other similar types of digitization projects involving copyrighted works, so that those works could be catalogued and searched,” J. Michael Keyes of Dorsey & Whitney LLP, Seattle, said in an e-mail.

“With this decision, we will hopefully see a renewal of efforts to digitize and open up access to culture and knowledge,” consumer group Public Knowledge said in a press release.

The decision wasn't met with unanimous praise, however.

David Leichtman of Robins Kaplan LLP, New York, said the decision misinterpreted the Supreme Court's definition of “transformative” from Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (U.S. 1994) to “add something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

“In its decision today in Authors Guild v. Google, the Second Circuit ignored this aspect of the Supreme Court’s definition since the snippet view product in the Google Books project does not create a new work or alter the text of the works at all—it merely copies them—and is used for the same intrinsic purpose as the original,” Leichtman said in an e-mail.

Supreme Court review of the decision is unlikely, Schiller said, because “this case keeps consistent the law of fair use among the circuits.”

However, Leichtman disagreed and said that the decision is “at odds with both the 7th Circuit and the 11th Circuit,” citing Kienitz v. Sconnie Nation, LLC, 766 F.3d 756 (7th Cir. 2014) and Cambridge Univ. Press v. Patton (11th Cir. 2014), “and thus now sets up a showdown in the Supreme Court over what it meant in 1994 when it used the word ‘transformative' in the fair use context.”

Judges Jose A. Cabranes and Barrington D. Parker joined the decision.

The Authors Guild was represented by Paul M. Smith of Jenner & Block LLP, Washington. Google was represented by Seth P. Waxman of Wilmer Cutler Pickering Hale & Dorr LLP, Washington.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

Full text at http://www.bloomberglaw.com/public/document/The_Authors_Guild_v_Google_Inc_Docket_No_1304829_2d_Cir_Dec_23_20/1.


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