By: Joanna Scleidorovich

Beginning in 2004, Google, Inc. (Google) began what is known as the Google Books project and Google Library Project, a compilation of over twenty million books scanned into a digital library for purposes of establishing a publically available search function.[1] Google allows users to search for specific terms or keywords within the books by providing a snippet of the copyrighted work. The authors of the books did not authorize Google to either scan the books, or provide the snippets to Google users; Google instead obtained the millions of scanned books by entering into contracts with different libraries. The Authors Guild is the largest American organization for writers, and its purpose is to advocate for the copyright protection (among others) of authors.[2] The two organizations have been in litigation since 2005, when plaintiff sued the technology giant for copyright infringement. Plaintiff appealed from the District Court’s (S.D.N.Y.) grant of summary judgment to the defendant, but the Circuit Court affirmed the lower court’s decision.

The Second Circuit led the discussion by establishing one of the basis for copyright protection, which is the idea that although an author may have exclusive rights to his work, the purpose of copyright protection is to “promote the progress of science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.”[3] The court analyzed each of the claims brought by the plaintiff by applying a four-factor test: 1. whether the new work is highly transformative; 2. the nature of the copyrighted work; 3. the amount and substantiality of work copied by the defendant, in relation to the copyrighted work as a whole; and 4. whether the new work competes with the original in the market.

The court applied the “transformative test.” For a work to fall under the transformative use standard, it must add something new to the original work, in a way that changes the purpose of the work. This factor serves the constitutional purpose of advancing he public’s access to knowledge. Since Google only provides the researcher with snippets of the copyrighted work, it clearly transforms the purpose of the material from fiction or factual, to informational.

The second factor the court discusses deals wit the nature of the copyrighted work, which in essence explores whether Google, in this case, has copied from the author a compilation of facts, which copyright law does not protect, or the manner in which these facts are expressed, which is what is protected under copyright law.[4] The court decided that because the snippets provided by Google do not simply replicate protected expression, but rather provides “transformatively provides valuable information about the original.”[5]

With respect to the third factor, the amount and substantiality of the copied work, the court stated that usually the larger the amount of work copied, the more likely the court will not rule in favor of fair use. In Google’s case however, although the company has without permission scanned the books in their entirety, this action was necessary for the purpose of providing the user with the relevant snippet of the book he or she seeks. The prominent search functions that Google seeks to offer would not be possible if it were not able to scan the entire copyrighted book.

Finally, the court looked at whether Google’s projects bring to the market “a competing substitute for the original, or its derivative,” with the effect of depriving the copyright holder of the potential revenue he or she would be otherwise entitled to.[6] The Second Circuit emphasized the relevance of this factor by explaining the commercial relevance of the copyright doctrine. The purpose of copyright protection is to encourage authors’ creativity by allowing them to earn revenues from their works. However, this factor only favors the copyright holder if the actions of the infringer are such that deprives the rightful copyright owner of potential revenues, by disseminating “sufficiently significant portions of the original.”[7] The court ruled that this is not the case.

After analyzing all of the possible fair use factors, the Second Circuit affirmed the ruling of the lower court and determined that Google’s scanning of tens of millions of books, borrowed from libraries, and without authorization from the respective authors, is in fact fair use. Authors Guild plans on appealing the case to the Supreme Court, but in the meantime it is important to recognize the impact of Second Circuit’s decision. It has been thirty-one years since Harper & Row was decided, and if the court had ruled in favor of the plaintiff, perhaps it would have ignored everything we know about fair use. Here, Judge Leval took into consideration the advent of technology since the copyright Act of 1976, and applied the constitutional purpose of copyright protection. A ruling favoring Authors Guild would have challenged the way search engines yield information and the purpose they serve in facilitating access of information to the public.

[1] See Authors Guild v. Google, Inc., No. 13-4829-cv, 2015 U.S. App. LEXIS 17988 (2d Cir. Oct. 16, 2015)

[2] Who We Are, The Authors Guild (last visited Oct. 25, 2015), https://www.authorsguild.org/who-we-are/

[3] U.S. Const., Art. I, § 8, cl. 8

[4] Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985).

[5] Authors Guild v. Google, Inc., No. 13-4829-cv, 2015 U.S. App. LEXIS 17988, at *43 (2d Cir. Oct. 16, 2015)

[6] See id. at *50-51.

[7] See id. at *52.