The Software IP Report

Cert. Denied in Google Books Copyright Case: Big Win for Fair Use Doctrine

By Peter Keros

Categories: Copyright, The Software IP Report

The U.S. Supreme Court recently denied review of the Second Circuit decision in The Authors Guild et al. v. Google Inc., 804 F.3d 202 (2d Cir. 2015), finalizing a decision allowing Google to continue its mass digitization projects as fair use. This decision is a major victory for fair use – and for Google’s preservation efforts for university libraries.

The ten year litigation battle is a bit complicated, so here’s a brief primer on the main issues. In short, Google works with several university libraries to digitize their collections and monetize the digital copies through searches through Google Books and Google’s Library Project. The works are mostly non-fiction, out-of-print books, many of which are deteriorating. The Google Books search function allows a searcher to view a limited amount of text, which Google describes as a “snippet,” or about three lines of text. Google also provides a digital copy of each work to all of the libraries involved, even to the libraries who do not have a corresponding physical copy. The Google Books project has immensely helped both the libraries involved and the searching functionality of Google, including improved accuracy of Google Translate and more visibility of out-of-print works to searchers.

However, the digitization and copying is taking place without express permission from the original copyright holders. The Author’s Guild, allegedly representing the interests of the authors of the digitized works, alleged that this mass digitization and distribution to the libraries is copyright infringement. Google responded that the digitization was acceptable fair use of the original works.

The Second Circuit Court of Appeals held that the digitization was a fair use of the copyrighted work. Notably, fair use has four statutory factors, and the court held that each factor was either neutral to or in favor of Google’s position of fair use. In particular, the court held that 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” and that the “commercial nature and profit motivation do not justify denial of fair use.” Google, 804 F.3d at 229. That is, Google’s transformative digitization and improvement of the libraries’ store of works outweighed the limited commercial benefits to Google.

Along with its sister case, Author’s Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), the Google Books decision is a major win for fair use, and the Supreme Court has now finalized that victory. Copyright law for digital works is still somewhat in flux, and typically favors copyright holders. But here, the Second Circuit’s underpinning guideline was the public benefit of the digitized works, rather than protection of the copyright owners, noting that “while authors are undoubtedly important beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.” Google at 212. While fair use is still a case-by-case determination of the court, I expect that projects focused on preservation of and access to commercially unavailable works will find this decision helpful when approached by groups like the Author’s Guild.