Fair Use in the Digital Age – Authors Guild v. Google Books

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  • June 06, 2018
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Authors Guild v. Google Books is a seminal decision regarding application of the fair use doctrine in the digital age. Starting in 2004, Google began building a vast, publicly available digital library, comprised of scanned and digitized copies of more than 20 million books from major research libraries. Readers can search the resulting database, aptly called “Google Books,” using keywords and phrases, and find titles and page numbers, along with some snippets of text containing those key words. Google asserted the use was fair, transformative, and allows readers and researchers to locate books they may never have found. The Authors Guild argued that the use was copyright infringement, in that Google Books is a commercial venture profiting from the display of copyrighted work, and its members should be compensated.

The Second Circuit Court of Appeals found in favor of Google in the case, and wholly rejected the Authors Guild’s claim that Google Books infringes its members’ copyrights. The court came to this conclusion by applying the fair use doctrine, and particularly the concept of transformative use, which is the first fair use factor. Breaking down each of the fair use factors, the decision was a clear victory for Google, and arguably the tech sector over the creative sector.

Fair Use Factor #1 – Transformative Use

A transformative use is the use of a copyrighted work that has a new and different purpose than the original. In this case, the original purpose of the works in question (all research books) is to expound on a topic, while the purpose of Google Books’ use is to help people locate books they may be interested in reading, not to serve as a substitute for the works themselves. The court had “no difficulty concluding” that Google’s digital copying with the goal of enabling keyword searches is a highly transformative purpose.

The court also rejected the Authors Guild’s claim that Google Books’ commercial nature undermined any claim of fair use by stating “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition…” The court went on to say, “Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytical books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.”

Fair Use Factor #2 – Nature of the Work

Regarding the second fair use factor—nature of the work, i.e. fact versus fiction—the court observed that this rarely plays a significant role in the determination of a fair use dispute, and the same is true here. Whether based in fact or fiction, an author’s expression of ideas is equally protected under copyright law.

Fair Use Factor #3 – The Amount & Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole

With respect to the third fair use factor—how much is copied from the original work—the court found that the copying of the entire original work is necessary for Google’s transformative purpose of advising readers whether their searched keyword or phrase appears in a book. For determining fair use, the court went on to explain, what matters more is how much of the copied material is made available “to a public for which it may serve as a competing substitute.” In Google Books’ case, only small snippets of the original book are, in fact, viewable by the public, subject to a variety of restrictions.

Fair Use Factor #4 – The Effect of the Use on the Potential Market For or Value of the Copyrighted Work

Addressing the fourth fair use factor—market harm—the Authors Guild argued that a reader could piece together several snippets to substitute for an original book, thus diminishing the author’s potential copyright revenue. However, the court concluded that it would be very difficult, if not impossible, to create meaningful substitutes for the works in question. Accordingly, the court did not think the snippets could cause significant market harm to the copyright holders. The court went on to reason that while there might be some loss of sales if a reader’s need for a book is satisfied by the exact information in the snippet, it’s likely that the loss only pertains to a historical fact, which is not a copyright concern, as copyright protects expression, not facts.

Decision Holds after U.S. Supreme Court Declines to Hear the Case

Following the Second Circuit’s decision, the Authors Guild petitioned the United States Supreme Court to review the case. However, in April of 2016, the Supreme Court turned down the appeal, and shut the book on the Authors Guild’s challenge to Google’s digital library. Thus, a decade-long legal saga reached its final chapter.

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