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Second Circuit Illuminates Google Books Fair Use Issues

BY Mitchell Zimmerman
December 31, 2015

Based on the defense of fair use, the Second Circuit affirmed summary judgment for Google in the decade-long copyright battle between an authors group and the Internet search giant. The lawsuit concerned Google's right to copy millions of books in order to allow snippet searches and text/data mining of the works. Making digital copies “to provide a search function is a transformative use,” the panel held, “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 '.” Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

To many legal observers, the outcome seemed obvious in light of the limited uses to which Google sought to affix the imprimatur of fair use. But the opinion takes a number of original turns in reaching this conclusion. Judge Pierre N. Leval, the author, is the same Judge Leval who, 25 years earlier, wrote the seminal copyright article on which rested the Supreme Court's “transformative fair use” analysis in Campbell v. Acuff-Rose, 510 U.S. 569 (1994).

In Acuff-Rose, the High Court considered whether the rap music group 2 Live Crew had infringed the copyright in the song “Pretty Woman” by copying the melody and much of the lyrics for their parodic version of the Roy Orbison hit. Relying heavily on Judge Leval's 1990 law review piece, “Toward a Fair Use Standard,” the Supreme Court adopted Leval's concept of “transformativeness” and ruled that the defendants' use was fair. See, 103 Harv. L. Rev. 1105 (1990).

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