Google Wins Again: Book-Scanning Project Is Fair Use

Imagine the world's most powerful library catalog. Not only can you search by title, author, or type of book, but you can search for actual text, such as books discussing the culture of rural West Virginia mountain people during the Revolutionary War.

Oh wait, we have that. It's called Google Books. You can run such a search, and you get snippets from such titles as "A History of Appalachia" or "West Virginia: A History." You can even read a paragraph or three to see if the book is a real snoozer. And if you want to read the entire thing, there are links for purchasing the book or finding it in a library.

Pretty brilliant, huh? So brilliant, in fact, that Google got sued by the Author's Guild, a group of copyright holders that claimed Google was trampling their rights. Today, Google prevailed.

Google's Limited Use

The U.S. District Court for the Southern District of New York's grant of summary judgment spends pages going into all of the limitations of Google's service. For example, though the entire book is searched for relevant text, certain randomly-selected snippets and pages are "black-listed," which prevents people from copying books by searching and copying snippet-after-snippet.

Access to the entire book is only possible for participating libraries (or where the book is out of copyright). And participating libraries can only access actual scans of their own books, not copies of others' copies.

Google's Fair Use

On remand from the Second Circuit, which vacated the district court's class certification and instructed the lower court to handle fair use first, the court applied the codified fair use defense test from the Copyright Act, 17 U.S.C. § 107. It states that in evaluating a fair use claim, the court should consider:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational 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.

For the first factor, courts place heavy emphasis on whether the use was "transformative." And while one might not think that copying direct snippets from books is transformative at all, taking those snippets and creating one of the world's greatest research tools is, at least in the court's opinion.

On the second factor, fiction and unpublished works tend to get greater protection, but the vast majority of Google's scanned books are non-fiction, published, and available to the public.

Though Google scans the entirety of the text and makes it searchable, only part of the text is displayed to users. The court noted that this weighs "slightly against fair use."

Finally, the fourth factor is the most ridiculous. Google Book searches actually direct readers to purchase the book. Seriously. Ridiculous.

Nonetheless, the plaintiffs argued that "Google Books will negatively impact the market for books and that Google's scans will serve as a 'market replacement' for books." They also argued "that users could put in multiple searches, varying slightly the search terms, to access an entire book."

The court responded:

"Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion."

How many sales are lost? A few spare copies to participating libraries? Take the lack of economic loss, and tack on the other three fair use factors, and this case was obvious from the outset.

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Related Resources:

• Summary judgment order in Authors Guild v. Google (Scribd)
• Amicus Briefs Piling Up in HathiTrust Digital Library Appeal (FindLaw's U.S. Second Circuit Blog)
• Have College Professors Become Digital Pirates? (FindLaw's Technologist Blog)