Open book

On October 16, the Second Circuit ruled that Google’s scanning of millions of books without the copyright holders’ permission, for use in its “Google Books” database, is permissible under the fair use doctrine. Google Books enables members of the public to search for terms within these books and view snippets of machine-readable text containing their search terms.

In 2004, Google entered into agreements with a number of the world’s major research libraries, pursuant to which Google was permitted to scan more than 20 million books submitted by those libraries in order to create an online index. Google’s aim was to enable members of the public to search for terms within the machine-readable text of each scanned book, in order to see if that book contained relevant material.  The Google Books search tool does not display advertising or otherwise cost members of the public money, and searches reveal only snippets of text surrounding the words or phrases searched. Publishers and authors sued Google for injunctive relief, claiming that the search and snippet view features of Google Books undermined the value of their copyrighted works.

On December 10, 2013, District Judge Chin for the Southern District of New York ruled in favor of Google on the grounds that Google’s uses were transformative, that its display of copyrighted material was properly limited, and that the Google Books program did not impermissibly serve as a market substitute for the original works. On appeal, the Second Circuit affirmed.

Section 107 of the Copyright Act protects the fair use of a copyrighted work for purposes such as, but not limited to, criticism, commentary, news reporting, teaching, scholarship, or research. Courts evaluate fair use under a four-factor framework: (1) the purpose and character of the use, and especially whether the appropriator of a work is using the copied material for new, transformative purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The Second Circuit held that factors one, three, and four of the above analysis supported a finding of fair use. Specifically, the court held that (1) the snippets of text shown were highly transformative; (2) because of limitations on the snippet, including the fact that the snippets were limited to one-eighth of a page, the snippet view was not significant in relation to the copyrighted work as a whole; and (3) the snippet view did not constitute a market substitute for the book because “at best and after a large commitment of manpower, [snippet view] produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book. This does not threaten rights holders with any significant harm to the value of their copyrights.” Notably, the court distinguished the snippet view from a book preview feature, stating that the latter provides searchers with a “meaningful experience of the expressive content of the book,” whereas the former reveals only that minimal contextual information necessary to enable a researcher to learn whether the book’s use of that term is of interest.

This case adds to the growing body of copyright law in the digital age, in which courts struggle to balance the competing interests of copyright holders against the merits of permitting the public to access the wide availability of information on the Internet. Like cases before it, such as Perfect 10, Inc. v., Inc., which held that thumbnail images are fair use because they provide an Internet pathway to the original images without serving as an effective substitute, Author’s Guild v. Google fleshed out the general principle that where a secondary user employs digitization to provide information about a copyrighted work without providing a substitute for that work, fair use likely applies. In contrast, snippets of songs used as ringtones have not been held to constitute fair use, because, unlike with the aforementioned examples, ringtones capture the most appealing segment of the author’s expressive content.