Google Granted Summary Judgment on Fair Use Defense

, New York Law Journal

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Robert J. Bernstein
Robert J. Bernstein

Last month, in Authors Guild v. Google,1 the U.S. District Court for the Southern District of New York, on cross-motions for summary judgment, upheld Google's fair use defense and accordingly dismissed infringement claims by the Authors Guild. The guild had asserted that (i) Google's mass digitization of the collections of several large university libraries, (ii) its delivery of digitized versions of these collections to the libraries, and (iii) its display of "snippets" from the books in response to search requests, violated the authors' exclusive rights of reproduction, distribution and public display under §106(1), (3) and (5) of the Copyright Act.2 In finding fair use, Judge Denny Chin, judge on the U.S. Court of Appeals for the Second Circuit (here sitting as a district judge),3 emphasized the public benefits derived from the Google Books project, and the lack of harm to authors.

The Google Books Project

Google Books consists of two parts: the Partner Program and the Library Project. In the Partner Program, the rights holders, primarily publishers, grant Google the right to scan their books and to control the extent to which the text may be displayed. The Partner Program is not at issue in Google. The Library Project is based on a huge digital compilation made by Google's scanning the collections of the libraries of the University of Michigan, Cornell University, the University of California at Los Angeles, the University of Wisconsin and Indiana University (collectively, the libraries). To date, more than 20 million books have been scanned by Google, and digital copies of the scans have been provided to each library with respect to its own collection.

The Library Project enables users of the Google Books website to search the entire digitized collection to determine what books contain the requested search terms. In "snippet view," Google Books displays three "snippets" (each snippet consisting of one-eighth of a page) in response to a search inquiry. Users may make multiple searches for snippets in response to different search requests. Google did not request or receive permission from rights holders to scan the books or to display snippets from them.

Benefits of the Library Project

In his findings of fact, Judge Chin identified (in a separate section titled "The Benefits of the Library Project and Google Books"), the following benefits: (i) provid[ing] a new and efficient way for readers and researchers to find books"; (ii) "mak[ing] tens of millions of books searchable by words and phrases"; (iii) "provid[ing] a searchable index linking each word in any book to all books in which that word appears"; (iv) "[promoting] a type of research referred to as 'data mining' or 'text mining,'…[which] 'can provide insights about fields as diverse as lexicography, the evolution of grammar, collective memory, the adoption of technology, the pursuit of fame, censorship, and historical epidemiology'"; (v) "preserv[ing] books and giv[ing] them new life," particularly ones that are out of print or long-forgotten; (vi) expanding access to books for print-disabled individuals by converting them into a digitized format compatible with text enlargement and text-to-speech software; and (vii) assisting readers and researchers in finding books and directing them to websites for online purchase, thereby simultaneously generating new audiences and income sources for authors and publishers.4

Thus, Judge Chin appears to have considered Google Books to be a "win-win" situation for all parties and for society. This becomes clear later in his opinion when he states, during his overall assessment: "Indeed, all society benefits,"5 and in his finding that Google Books causes no market harm to authors.

Chin went beyond the mere identification of benefits derived from Google Books; he stated that Google Books "has become an essential research tool," a characterization that heightens its importance as a favored educational use under the first enumerated fair use factor (the "purpose of the use"), and in the overall balancing process.

The Fair Use Analysis

Pursuant to the governing standards set forth by the U.S. Supreme Court in Campbell v. Acuff-Rose,6 Chin evaluated each of the four non-exclusive fair use factors set forth in §107 of the Copyright Act, and then balanced and weighed them together with any other relevant considerations, in light of "copyright's very purpose, to promote the Progress of Science and useful Arts."7 He further explained: "Copyright law seeks to achieve that purpose by providing sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utilize protected works to advance the progress of the arts and sciences."8 With these principles in mind, Chin proceeded to examine the fair use factors.

The Purpose of the Use. The first enumerated factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." Citing Campbell, Chin observed that in evaluating the first factor,

[a] key consideration is whether…the use of the copyrighted work is "transformative," that is, whether the new work merely "supersedes" or 'supplants' the original creation, or whether it [ ] instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative."9

Chin balanced this factor strongly in favor of fair use because he found that the uses were "highly transformative,"10 "add[ing] value to the original and allow[ing] for the creation of new information, new aesthetics, new insights and understandings."11 He also found that Google's uses did not supersede or supplant the books.

In support of his determination that Google's uses are highly transformative, Chin pointed to Google's "transform[ation] of expressive text into a comprehensive word index that helps readers, scholars, researchers and others find books." Similarly, he found the display of snippets to be transformative because it uses book text as a research tool rather than for expressive purposes; thus, the "snippets of text [ ] act as pointers directing users to a broad selection of books" rather than as a tool for reading any particular book. Here, he analogized to the display of thumbnail images in two U.S. Court of Appeals for the Ninth Circuit cases12 in which the court considered the thumbnails to have a different purpose (to facilitate finding the full images) from the purpose of the original works (to convey aesthetic expression). Chin also found data mining and text mining to be transformative uses due to their potential for creating new insights and understanding.

None of these uses were found to be substitutes for the books because Google Books is not designed, or useful, for reading books.13 Chin did not credit the guild's assertion that multiple searches yielding voluminous snippets could be combined by users for the purpose of reading the books. Nor did he consider Google's status as a commercial entity to weigh against fair use. Although acknowledging that a commercial use or user may tend to weigh against fair use, he pointed to recent Second Circuit precedents in which fair use was found notwithstanding a defendant's commercial benefit.14

Chin therefore determined that the first factor strongly favors fair use.

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