Books In the World of Google: Digitization Marches On

Google’s Library and Books Projects involve the digitization of complete copies of millions of print books without the authors’ or copyright owners’ permission. Google’s platform allows the public to search digital copies of the books and displays both titles and snippets of the works in the search results. On Friday, the Second Circuit Court of Appeals rejected several authors’ copyright infringement lawsuit against Google, finding the digitization of the books was protected as fair use. The Court’s decision, in Authors Guild v. Google, Inc., Docket No. 13-4829-cv, can be found here.

Google scans books submitted by major libraries and makes searchable files available to the public. The Second Circuit approved an aspect of this program on fair use grounds a year ago in Authors Guild, Inc. v. HathiTrust, discussed our June 12, 2014 blog posting. In HathiTrust, a digital repository of more than 80 libraries’ collections – digitized by Google – made the collections available to the public to search using keywords. The search results consisted of a list of responsive works along with the number of “hits” in each work. Google’s program takes the search a step further. It not only lists works containing keywords but also displays snippets from the works in the search results.

In Authors Guild v. Google, the Court extended its reasoning in HathiTrust to apply the fair use doctrine to Google’s Library and Books Projects. As is often the case, the Court focused on the “transformative” nature of Google’s program — the first prong of the statutory fair use analysis. The Court held that Google’s digitization of works to enable keyword searching, and its provision of snippets of the search results to allow the searcher to decide whether the work is within his or her scope of interest, were “highly transformative” and therefore weighed in favor of fair use. The Court also concluded that Google’s program would have a minimal impact on the commercial value of the works to their copyright owners, since Google’s program does not provide a substitute for the acquisition of the work as a whole. The Court used the case as an opportunity to address the common misconception that for-profit uses cannot be fair uses. Although the Court recognized that commercialism is a component of the analysis, for-profit motivation must be weighed against the transformative nature of the work, resulting in a sliding scale where the more transformative a work, the less significant other factors such as commercialism become. Applying that sliding scale to this case, the Court found the “highly convincing transformative purpose” of the project outweighed Google’ profit motivation.

It has often been noted that the fair use doctrine is one of the most fraught areas of copyright law. It is hard to escape the conclusion, however, that the foundation of the Second Circuit’s opinion is the conclusion that Google – notwithstanding its ultimate for-profit motivation – is providing a useful public service without inflicting any material damage on the copyright owner’s rights.