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Google's Book-Scanning Program is Ruled 'Fair Use'


Recent Happenings in APRM
November 2013

In a potentially landmark decision, Judge Denny Chin of the United States District Court for the Southern District of New York, has ruled that the copyright fair use doctrine allows Google to scan books, make them searchable and display "snippets" of them online, without the authorization of the respective authors. 

This case has its origins in 2004, when Google announced plans for what became known as the Google Books Program to scan millions of books using newly-developed scanning technology. After reaching agreements with several major research libraries to digitally copy the books in their collections, Google scanned more than twenty million books. It has delivered digital copies to participating libraries, created an electronic database of books, and made the text available for online searching through the use of "snippets." Many of the books scanned were protected by copyright and were copied by Google without the consent of the copyright owners. 

Plaintiffs, The Authors Guild and certain individual authors, including baseball pitcher and Ball Four author Jim Bouton commenced this action in 2005 against Google for copyright infringement. The case has a long history that will not be summarized here. In this particular phase of the lawsuit, Google moved for summary judgment arguing that its use was a fair use and Judge Chin granted the motion on November 14, 2013.  

In making the analysis, Judge Chin began by assuming that plaintiffs had established a prima facie case of copyright infringement and focused solely on the issue of whether Google use of the copyrighted works was "fair use" under the copyright laws. 17 U.S.C. § 107.

The four factors to be considered when determining whether the use of a work, is fair use, are: (1) the purposes and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. 

Judge Chin found that a key consideration, as part of the inquiry into the first factor, was whether the use of the copyrighted work is transformative. That is, does the new work add "something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is 'transformative.'" Author's Guild v. Google, Inc., No. 05-cv-8136, 2013 U.S. Dist. LEXIS 162198, at *19-20 (S.D.N.Y. Nov. 14, 2013); see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 

In addressing this action, Judge Chin held that Google's use of the copyrighted works was "highly transformative," because Google transformed books into digitized text that can be used by scholars, researchers and others to find books, and it may be used for substantive research, including data mining and text mining in new areas, thus opening up new fields of research. Authors Guild, 2013 U.S. Dist. LEXIS 162198, at *22. While Judge Chin acknowledged the fact that Google is a for-profit company, and that this weighed against a finding of fair use, he found that Google Books serves several important educational purposes and because of this, the first factor of the fair use test strongly favors a finding of fair use

In turning to the second factor, the nature of the copyrighted work, Judge Chin found that a majority of the books in Google Books (93 percent) were non-fiction and the books were published and available to the public, and these considerations favored a finding of fair use. 

Although Judge Chin found the third factor, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," to weigh slightly against a finding of fair use because Google copied the full text of books, he also found it significant that Google limited the amount of text it displays in response to a search. 

The fourth factor was "the effect of the use upon the market for or value of the copyrighted work." Judge Chin found that a reasonable fact finder could only find that Google Books enhanced the sales of books to the benefit of copyright holders. Google Books provides a way for authors' works to become noticed and potentially purchased. Google Books provides authors with a potentially larger audience and potentially increased book sales. This factor weighed strongly in favor of a finding of fair use.

Overall, Judge Chin found that Google Books "provides significant public benefits. It advanced the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders." Authors Guild, 2013 U.S. Dist. LEXIS 162198, at *27-28. Therefore, Google was entitled to summary judgment holding that Google's actions were a fair use. 

This does not appear to be the end of the story, as The Authors Guild has announced plans to appeal the decision.  

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