Last month, the Supreme Court denied certiorari in Authors Guild v. Google, Inc., the long-running copyright case involving Google’s Google Books project. The high court’s refusal to hear the case leaves in place the Second Circuit’s October 2015 decision in favor of Google and brings to a close this highly publicized and closely watched litigation, more than a decade after it began. The Second Circuit’s opinion, which the Supreme Court has left undisturbed, held that Google Books is protected as fair use, a conclusion considered by many to be emblematic of a recent trend toward expansion of the fair use doctrine. To wrap up our coverage of this case, we offer a recap of the issues and a summary of the Second Circuit’s legal analysis.
The Google Books Project
As we have previously chronicled in this blog, the Google Books project began in 2004, when Google secured permission from a number of prominent university libraries to scan and digitize selected books from their collections. In exchange, Google provides the libraries with digital copies of the books. This undertaking has resulted in a collection of machine-readable digital copies of more than 20 million books, some of which are in the public domain and some of which are protected by copyright.
Google makes aspects of this collection accessible to the public through the Google Books search engine. Users can enter a search term and receive a list of books in which their term appears, including the number of times it appears and basic bibliographical information about the book. Users can also see small pieces of the text of books protected by copyright, which Google calls “snippets.” A “snippet” is about an eighth of a page, and in response to a search Google will reveal up to three snippets containing the search term in a given book. Google has placed a number of restrictions on snippet view to make it impracticable or impossible to piece together the full text of a book from snippet searching. Finally, the Google Books collection enables researchers to engage in data mining across a huge sample of written works – to study, for example, the frequency of particular words or phrases over time.
The Authors Guild Suit
In 2005, shortly after the project began, the Authors Guild, along with some individual authors, sued Google for copyright infringement. The case proceeded through many twists and turns, including a settlement that was rejected by the District Court and a class certification that was overturned by the Second Circuit. Ultimately, in 2013, the District Court held that Google’s activities as described above were protected from copyright infringement liability by the doctrine of fair use.
Last October, the Second Circuit affirmed that conclusion, and the Supreme Court’s denial of certiorari makes the Second Circuit’s opinion the final word on the question of Google Books and fair use.
The Second Circuit’s View of Transformative Use
The bulk of the Second Circuit’s opinion is dedicated to an analysis of the Google Books search and “snippet view” functions under the four statutory fair use factors laid out in 17 U.S.C. § 107. Perhaps the most significant aspect of the court’s analysis is its discussion under the first factor (the purpose and character of the use) of “transformative use,” a concept that has featured prominently in considerations of fair use since the Supreme Court endorsed it in Campbell v. Acuff-Rose, 510 U.S. 569 (1994). The Second Circuit explained that “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.”
The court warned, however, that “[t]he word ‘transformative’ cannot be taken too literally as a sufficient key to understanding the elements of fair use,” and in particular that care must be taken to distinguish derivative works from fair uses. “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 original 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” (emphasis in original; citations omitted). Ultimately, relying heavily on its earlier decision in the HathiTrust case, the Second Circuit concluded that the search and snippet view functions were transformative (despite the fact that the HathiTrust case was arguably distinguishable because it had involved a non-profit defendant that did not allow searchers to see snippets of text).
The Rest of the Second Circuit Analysis
The court went on to conclude that the other statutory factors – the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for or value of the copyrighted work – were either neutral or weighed in favor of fair use. Notably, the court found that the roadblocks Google had imposed on snippet view meant that the snippets were unlikely to serve as a substitute for the actual books or for any protectable aspect of the books.
The court also rejected various ancillary arguments the plaintiffs had asserted. The plaintiffs had claimed an exclusive right to provide digital search and snippet view functions for their works, but the court concluded that copyright does not encompass an exclusive right to provide information about a work. The plaintiffs argued that Google’s storage of digitized versions of their entire works subjected them to a risk that hackers would access and distribute those full versions to the public. The court discounted this possibility, noting that the digital works are “protected by the same impressive security measures used by Google to guard its own confidential information.” Finally, the court dismissed as “sheer speculation” the plaintiffs’ concerns that the libraries might use the digital copies they received from Google in an infringing manner, or fail to protect them sufficiently against the possibility of hacking.
Thus concludes the decade-long saga of the Google Books case. The hopes of many copyright observers, that the Supreme Court might take this opportunity to clarify the law on fair use, and particularly the concept of “transformative purpose,” have been disappointed. It remains to be seen how the Second Circuit’s opinion will influence future fair use cases – whether it will have a lasting impact on the scope of fair use generally, or will be confined to the arguably sui generis facts of Google and its Books project.