Last week, the long running Google Books case finally concluded. This case started in 2005 when the US Authors Guild opted to sue Google over their decision to scan an enormous number of books for their digital library (where Google shows searchers snippets of various documents in the search results). While Google and the Guild reached a settlement in 2008, a court rejected the settlement in 2011 on the grounds that such a settlement would grant a monopoly on digital libraries. As a result, the Second Circuit decided to decide whether Google infringed on these authors’ copyrights.
Google made a fairly obvious, if difficult, argument against infringement: fair use. As stated in earlier blog posts, it is always difficult to predict the outcome of a fair use case. The four factors in determining fair use from 17 U.S.C 107 (the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work) are relatively vague and require a great deal of factual analysis. This means that results can vary greatly from case to case, which makes the determination of the judge difficult to predict beforehand.
One of the major considerations in this case was whether Google Books qualified as transformative. Transformative works, as the judge points out on page 18 of the opinion, have to add something new and not supplant the previous copyrighted work. Judge Chin holds Google Books to be highly transformative because the service facilitates book searches for researchers. The judge also adds that Google Books adds an important service when compared with regular books: the ability to data and text mine. Paper books cannot provide such services, which tends to find for a transformative purpose and character. Judge Chin even compares this service to Google’s use of thumbnail images when conducting a web search (which was at issue in Perfect 10 v. Amazon). In the Perfect 10 case, the court held that thumbnail images were transformative because they provided snippets of copyrighted works that aided in finding the websites for which the user searched. The judge’s takeaway, that aiding in digital searches represents a transformative use, forms the major logical basis of this ruling.
The opinion deals with the other three factors less extensively. The nature of the copyrighted work is addressed briefly, since there is no doubt that books receive copyright protection. Google Books does take the entire work for its scans, but that does not necessarily weigh against a finding of fair use. In fact, it supports fair use in circumstances where using the entire work is necessary to engage in the fair use activity (see Bill Graham Archives v. Kindersley). The Use prong presents Judge Chin’s most nuanced argument. The Author’s Guild argues that Google Books acts as a book replacement service that would effectively displace the commercial demand for books. The judge states that this argument does not hold up since 1. Google does not sell its scans and 2. only partner libraries (who already own copies of these books) can download a scan. In addition, the fact that Google cuts up the book scans into snippets makes it difficult to reassemble the whole book into a usable copy for the casual reader. As a result, the judge does not think that Google Books will displace the commercial market for books.
All of this taken together leads to a very significant conclusion: that fair use protection exists for a book scan database, in light of its research purposes. This ruling provides a great deal of protection for Google Books, and allows the service to continue without needing to pay royalties or ask for authors’ permission to display the snippets in a search. As with internet searching, this fair use protection eliminates a significant potential cost and makes Google Books significantly more useful. That, in turn, helps researchers and should aid the public good as a result. Promoting the public good is the goal of copyright (by encouraging art), and why fair use exists as an exception in the first place. Getting a ruling on the merits also allows for other entities without Google’s resources and legal team to engage in their own book scanning projects, with a clear court case protecting their right to do so. This case is still likely not over. The Author’s Guild is already threatening to appeal. How the Second Circuit Court of Appeals in New York rules should be very interesting.
Due to the fact that I wrote a special post about the Trans-Pacific Partnership on Monday, I will not post an entry on Friday. On that note, have a great weekend.