The Authors Guild Inc. v. Google Inc.

Plaintiffs brought a class action charging Google with copyright infringement, alleging that Google violated the authors’ copyrights in creating its Google Books project. Earlier in the suit’s procedural history, the plaintiffs had filed a class certification motion, which was granted by the district court. The Second Circuit vacated the class certification, concluding that “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues.” The Second Circuit remanded the case, and the district court, in this decision, granted summary judgment to Google on its fair use defense.

The Google Books project involves the digital scanning of books for Google’s digital library collection. The Books Project actually encompasses two separate programs – the Partner Program and the Library Project. Under the Partner Program, works are displayed with the permission of the rights holders and the partners decide how much of their books are browsable (in snippets or in full). With the Library Project, Google scans entire books that participating libraries provide – some libraries provide only works in the public domain, while others allow in-copyright works as well. Google did not seek or obtain permission from the rights holders to digitally copy or display the in-copyright books.

In scanning books for its Library Project, Google creates an overall index of all scanned books, linking each word or phrase appearing in each book with the locations in all of the books in which that word or phrase is found. Users of Google’s search engine can conduct searches of the scanned books and be directed to an “About the Book” page, which includes links to sellers of the books and/or libraries that list the book as part of their collections. For books that are in snippet view, as contrasted with full-view books, Google divides each page into eighths, each of which is a snippet – each search generates three snippets of a work. By performing multiple searches using different search terms, a single user may view far more than three snippets. However, Google takes security measures to prevent users from patching together a complete copy.

Limiting its analysis to the sole issue of fair use, the district court analyzed the Google Books project under the four “fair use” factors: (i) the purpose and character of the use (including whether such use is of a commercial nature), (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (iv) the effect of the use upon the potential market for or value of the copyrighted work.

With respect to the first factor (the purpose and character of the use), the court emphasized that Google’s use of the books is highly transformative – digitizing them; transforming text into a comprehensive word index to help readers, scholars, researchers, and others find books; and becoming an important tool for libraries, librarians, and cite checkers to identify and find books. The court likened the display of snippets to the display of thumbnail photographs, which have been held to be fair use, and noted that Google Books is also transformative in that it has transformed book text into data for purposes of substantive research, including data mining and text mining. The court noted that Google Books also does not supplant books, since it adds value to the original and cannot be used as a tool to read an in-copyright book. While Google is a for-profit entity and Google Books is largely a commercial enterprise, the court focused on the project’s educational purposes and overall benefits and noted that Google does not engage in the direct commercialization of the copyrighted works. Accordingly, the court concluded that the first factor strongly favored a finding of fair use.

Turning to the nature of the copyrighted work, the court noted that while works of fiction are entitled to greater copyright protection, the vast majority of the books in Google Books are nonfiction. The court also observed that the books at issue have all been published and are available to the public and concluded that these considerations favor a finding of fair use.

With respect to the third factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole), the court acknowledged that Google scans the full text of books but noted that, in appropriate circumstances, copying the entirety of a work may still be fair use. Here, the court noted that one of the keys to Google Books is its offering of full-text search of books (and thus full-work reproduction is critical to the functioning of the project) and that Google limits the amount of text that it actually displays in response to a search. On balance, the court concluded that the third factor weighed against a finding of fair use but only slightly.

Finally, to economic effect, the court rejected the idea that Google’s scans would serve as a market replacement for books, expressing doubt that users would take the time and energy to try to get enough snippets to compose an entire book. Instead, the court found it likely that Google Books would allow the scanned works to be discovered by new readers, thus enhancing the sales of the books, to the benefit of the copyright owners.

Weighing the statutory fair use factors together with the consideration that Google Books provides significant public benefits as a research tool and audience generator for copyright holders, the district court held that Google’s project is fair use and that the company cannot be held liable for other direct or secondary infringement.

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For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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