Google Books Program Considered Fair Use

By: Joe Carnicella, intellectual property attorney at Picadio Sneath Miller & Norton, P.C. (Joseph Carnicella on G+)

On November 14, 2013, the United States District Court for the Southern District of New York held that Google’s Books Program constituted fair use under Section 107 of the Copyright Act, 17 U.S.C. 107.

Since 2004, Google has scanned more than twenty million books as part of its two digital book programs, the “Partner Program” and the “Library Project” (collectively referred to as “Google Books”).  Almost 93% of the books scanned are non-fiction while the remaining 7% are fiction.  The Partner Program, which is designed to help publishers sell books and to help books become discovered, consists of Google hosting and displaying material provided by book publishers or other rights holders with the permission of the rights holders.  The Library Project involves the digital scanning of books in the collections of numerous libraries without the permission from the copyright holders.  Pursuant to an agreement with Google, participating libraries can download a digital copy of each book scanned from their collections.  Google also creates more than one copy of each book it scans and maintains digital copies on its servers and back-up tapes.

Plaintiffs, the legal or beneficial owners of various books, commenced this action alleging that Google committed copyright infringement by scanning copyrighted books and making them available for search without permission of the copyright holders.  Google’s primary defense was fair use.  According to Section 107 of the Copyright Act, the fair use of a copyright work , . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.  In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational 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.  The court analyzed each of these factors as general guidance to determine whether Google infringed on the rights of the copyright holders.

First, with respect to the purpose and character of use, a key consideration is whether the use of the copyrighted work is “transformative,” that is, whether the new work merely supersedes or supplants the original creation or whether it instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.  The court determined that Google’s use of the copyrighted works was highly transformative.  Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers and others find books.  Google Books helps librarians and cite-checkers to identify and find books.  The court found that the use of book text to facilitate search through the display of snippets was transformative.  The court also found Google Books to be transformative in that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research.  Moreover, the court concluded that Google Books does not supersede or supplant books because it is not a tool to be used to read books.  Finally, even though Google is a for-profit company and Google Books is a commercial enterprise, and despite the fact that a commercial use tends to weigh against a finding of fair use, the court found fair use because Google does not engage in direct commercialization of copyrighted works, i.e. Google does not sell the scans it has made of the books, does not sell the snippets that it displays, and does not run ads on the pages that contain snippets.

With respect to the second factor, the court considered certain facts (e.g. that the majority of the books are non-fiction and that the books at issue are published and available to the public), and concluded that such considerations favor a finding of fair use.

With respect to the third factor, the court noted that Google scans the full text of books and it copies verbatim expression.  The court noted that, as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books.  Even though Google limits the amount of text it displays in response to a search, the court concluded that the third factor weighed slightly against a finding of fair use.

Finally, with respect to the fourth factor, the plaintiffs argued that Google Books would negatively impact the market for books and that Google’s scans would serve as a “market replacement” for books.  The court disagreed with this argument because Google does not sell its scans, and the scans do not replace the books.  The plaintiffs also argued that users could put in multiple searches, varying slightly the search terms, to access an entire book.  Again, the court disagreed and found it highly unlikely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book.  According to the court, not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.  To the contrary, the court found that Google Books would only enhance the sales of books to the benefit of copyright holders and determined that Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays.

The court weighed the competing factors and found Google’s use to be a fair use.  According to the court, Google Books provides significant public benefits by advancing the progress of the arts and sciences, by maintaining respectful consideration for the rights of authors and by not adversely impacting the rights of copyright holders.  Also, Google provides the libraries with the technological means to make digital copies of books that they already own, wherein the libraries then use the digital copies in transformative ways by creating their own full-text searchable indices of books, maintaining copies for purposes of preservation, and making copies available to print-disabled individuals.