Google Books' Fair Use Win

Rejecting a decade-long attack on Google's mass reproduction of millions of books as well as its presentation of “snippets” ' sections of works set alongside information on how readers can buy the books ' the U.S. Court of Appeals for the Second Circuit court decided that Google Books has a “highly convincing transformative purpose” and thus is a protected fair use for which the company cannot be held liable under the Copyright Act.

Circuit Court Pierre Leval, Jose Cabranes and Barrington Parker made the decision in The Authors Guild v. Google Books, 13-4829 (Second Cir., Oct. 16, 2015). The appeals court upheld a 2013 grant of summary judgment in Google's favor by then-Southern District Judge Denny Chin, who found fair use in a decision that ruled in favor of the company's 2004 Library Project, in which libraries and the company collaborated on the mass digitization of library books. Since the project's inception, libraries have downloaded more than 2.7 million digital copies of their own books.

Judge Chin found significant public benefits for the Google Books project, which now has more than 20 million books, including the transformation of “expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” Judge Chin said the project helped preserve books, gave underserved populations access to books, and aided scholars to analyze large amounts of data through the use of “text mining” and “data mining.”

The Transformative Use

The Second Circuit agreed in a decision informed by spirited arguments in 2014 by Jenner & Block partner Paul Smith for the plaintiffs and Seth Waxman, a partner at Wilmer Cutler Pickering Hale & Dorr for Google.

“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,” Judge Leval said. “The same is true, at least under present conditions, of Google's provision of the snippet function.”

The plaintiffs, who included individual authors such as Jim Bouton and Betty Miles, as well as publishing companies, had argued that Google interfered with their access to paid and unpaid licensing markets that provide essentially the same functions as Google.

That argument fails, Judge Leval wrote, “in part because 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.”

Judge Leval said the fact that Google has a profit motive doesn't justify denial of a finding of fair use and the company's program “does not, as this time and on the record before us, expose plaintiffs to an unreasonable risk of loss of copyright value through incursions by hackers.”

As for the provision of digital copies to libraries that participate in the program, Judge Leval said that aspect was 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.”

Judge Leval reviewed the development and history of fair use, the exception to infringement based on the idea that, while an author is intended to benefit from copyright, “the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”

On the specifics of analyzing “tiny snippets,” Judge Leval said the snippets “are designed to show the searcher just enough context surrounding the search term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author's copyrights interest).”

Judge Leval added: “Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the author.”

Google's profit motive should not “prevail as a reason for denying fair use over its highly convincing transformative purpose,” Judge Leval said. “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,” he said.

The Parties' Reactions

Mary Rasenberger, executive director of the Authors Guild, in a statement lamented the circuit's failure to reverse Judge Chin's “flawed interpretation of the fair use doctrine.” Rasenberger noted: “We are very disheartened that the court was unable to understand the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, on our literary heritage. We trust that the Supreme Court will see fit to correct the Second Circuit's reduction of fair use to a one-factor test-whether the use is, in the court's eye, 'transformative.'”

A spokesperson for Google said: “Today's decision underlines what people who use the service tell us: Google Books gives them a useful and easy way to find books they want to read and buy, while at the same time benefiting copyright holders. We're pleased the court has confirmed that the project is fair use, acting like a card catalog for the digital age.”

Mark Hamblett writes for the New York Law Journal, an ALM sibling of Entertainment Law & Finance.

Rejecting a decade-long attack on Google's mass reproduction of millions of books as well as its presentation of “snippets” ' sections of works set alongside information on how readers can buy the books ' the U.S. Court of Appeals for the Second Circuit court decided that Google Books has a “highly convincing transformative purpose” and thus is a protected fair use for which the company cannot be held liable under the Copyright Act.

Circuit Court Pierre Leval, Jose Cabranes and Barrington Parker made the decision in The Authors Guild v. Google Books, 13-4829 (Second Cir., Oct. 16, 2015). The appeals court upheld a 2013 grant of summary judgment in Google's favor by then-Southern District Judge Denny Chin, who found fair use in a decision that ruled in favor of the company's 2004 Library Project, in which libraries and the company collaborated on the mass digitization of library books. Since the project's inception, libraries have downloaded more than 2.7 million digital copies of their own books.

Judge Chin found significant public benefits for the Google Books project, which now has more than 20 million books, including the transformation of “expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” Judge Chin said the project helped preserve books, gave underserved populations access to books, and aided scholars to analyze large amounts of data through the use of “text mining” and “data mining.”

The Transformative Use

The Second Circuit agreed in a decision informed by spirited arguments in 2014 by Jenner & Block partner Paul Smith for the plaintiffs and Seth Waxman, a partner at Wilmer Cutler Pickering Hale & Dorr for Google.

“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,” Judge Leval said. “The same is true, at least under present conditions, of Google's provision of the snippet function.”

The plaintiffs, who included individual authors such as Jim Bouton and Betty Miles, as well as publishing companies, had argued that Google interfered with their access to paid and unpaid licensing markets that provide essentially the same functions as Google.

That argument fails, Judge Leval wrote, “in part because 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.”

Judge Leval said the fact that Google has a profit motive doesn't justify denial of a finding of fair use and the company's program “does not, as this time and on the record before us, expose plaintiffs to an unreasonable risk of loss of copyright value through incursions by hackers.”

As for the provision of digital copies to libraries that participate in the program, Judge Leval said that aspect was 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.”

Judge Leval reviewed the development and history of fair use, the exception to infringement based on the idea that, while an author is intended to benefit from copyright, “the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”

On the specifics of analyzing “tiny snippets,” Judge Leval said the snippets “are designed to show the searcher just enough context surrounding the search term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author's copyrights interest).”

Judge Leval added: “Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the author.”

Google's profit motive should not “prevail as a reason for denying fair use over its highly convincing transformative purpose,” Judge Leval said. “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,” he said.

The Parties' Reactions

Mary Rasenberger, executive director of the Authors Guild, in a statement lamented the circuit's failure to reverse Judge Chin's “flawed interpretation of the fair use doctrine.” Rasenberger noted: “We are very disheartened that the court was unable to understand the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, on our literary heritage. We trust that the Supreme Court will see fit to correct the Second Circuit's reduction of fair use to a one-factor test-whether the use is, in the court's eye, 'transformative.'”

A spokesperson for Google said: “Today's decision underlines what people who use the service tell us: Google Books gives them a useful and easy way to find books they want to read and buy, while at the same time benefiting copyright holders. We're pleased the court has confirmed that the project is fair use, acting like a card catalog for the digital age.”

Mark Hamblett writes for the New York Law Journal, an ALM sibling of Entertainment Law & Finance.