Google’s Book Digitizing Activities Ruled Fair Use

Authors of published books under copyright sued Google for copyright infringement, alleging that Google’s book copying activities for Google’s Library Project and Google Books project infringe the authors’ copyrights.  In Authors Guild, Inc. v. HathiTrust, authors alleged that the HathiTrust violated the authors’ copyrights by allowing Google to electronically scan HathiTrust members’ book collections and create a repository of the scanned works.  The Second Circuit ruled in that HathiTrust’s activities were fair uses.  It’s no surprise, then, that the Second Circuit also ruled in this case, Authors Guild v. Google, Inc., that Google’s activities were fair uses.  The Second Circuit’s ruling in the Google case is closely related, but not identical, to its ruling in HathiTrust.  My post, HathiTrust Book Scanning Ruled Fair Use, discusses the Second Circuit’s ruling in HathiTrust.

The opinion in the Authors Guild v. Google case was written by Second Circuit Judge Pierre N. Leval.  Judge Leval created the transformative use test as a way of determining whether a later work made fair use of a preceding work.  He described the transformative use test in his law review article, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).  The U.S. Supreme Court frequently referred to Judge Leval’s law review article in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  In Campbell, the Supreme Court adopted the transformative use test in ruling that 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” was a fair use.

The Second Circuit articulated its ruling at the get go:

Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in dispute.

(Opinion pdf page 4).

The Second Circuit pointed out that, throughout history, copyright owners have never had absolute control over all copying of their work.  Doing so would limit, not expand, public knowledge.  Fair use is actually a long standing common law principle that Congress finally put into statutory form in the Copyright Act of 1976.

Fair use is a fluid concept.

In passing the statute, Congress had no intention of normatively dictating fair use policy. The purpose of the enactment was to give recognition in the statute itself to such an important part of copyright law developed by the courts through the common law process. Congress meant § 107 (the fair use statute) to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it an any way, and intended that courts continue the common-law tradition of fair use adjudication. Furthermore, notwithstanding fair use’s long common-law history, not until the Campbell ruling in 1994 did courts undertake to explain the standards for finding fair use.

(Opinion pdf page 15).

The Second Circuit naturally discussed each of the four fair use factors individually.  This post discusses just the first factor, transformative purpose.

Transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.

(Opinion pdf page 17).

While changes that characterize derivative works, such as translation of a novel into another language or adapting a novel into a movie or play can be described as transformations,

they do not involve the kind of transformative purpose that favors a fair use finding. The statutory definition suggests that derivative works generally involve transformations in the nature of changes of form.  By contrast, copying from an original for the purpose of criticism or commentary on the original16 or provision of information about it, tends most clearly to satisfy Campbell’s notion of the ‘transformative’ purpose involved in the analysis of Factor One.

(Opinion pdf pages 19 – 20).

The Second Circuit emphasized that commercial motivations do not outweigh a convincing transformative purpose.

While we recognize that in some circumstances, a commercial motivation on the part of the secondary user will weigh against her, especially, as the Supreme Court suggested, when a persuasive transformative purpose is lacking, 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, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.

(Opinion pdf page 26).

This case is Authors Guild v. Google, Inc., No. 13-4829-cv, Second Circuit Court of Appeals.

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