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, authored by Judge Pierre Leval, takes a number of original turns in reaching this conclusion. Twenty-five years ago, Judge Leval 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).
The Google Books case gave Judge Leval an opportunity to return to the issue and elucidate transformativeness in a technology context.
Factual Background/Procedural Context
Beginning in 2004, Google began scanning and digitizing books in the collections of the New York Public Library, the Library of Congress, and various university libraries. The vast majority of the books were non-fiction, and most were out of print. The works included books still under copyright as well as books in the public domain.
Google’s indexing allows users to search the full text of more than 20 million books. A list of books responsive to a search is made available, and the user can go to a page that provides links to websites offering the book for sale if still in print, and information including a list of the words and terms that appear most frequently in the book.
In “snippet view,” Google also displays about an eighth of a page around the search term. Users cannot view or download the full texts, and Google has taken precautions to make it impossible, as a practical matter, for users to read all or a substantial part of a book through repeated searches. The Google Books service is free and there is no advertising on Google Books pages.
The Authors Guild and three author-plaintiffs filed suit in 2005. The relatively narrow fair use issue—whether it was legitimate for Google to copy the works and provide the search and snippet functions—was long overshadowed by controversies over an attempted settlement.
After the district court rejected the Google Books Settlement in 2011, the case moved forward on the merits. In November 2013, the court granted Google’s motion for summary judgment based on fair use.
Legal Standards
“Fair use” is a judicially developed limitation on the scope of copyright, now codified in 17 U.S.C. § 107. The section provides courts shall consider four factors:
- “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential...
