Posted by: Ashlee Hoffman
In a decision being hailed across the Internet, Judge Chin decided that copying millions of books constituted fair use. How did that happen?
Let’s start with the basics: Who was involved in this extensive litigation?
The Authors Guild, Inc. is the nation’s largest organization of published authors. It claims to advocate for and support the copyright and contractual interests of published writers.
Google, on the other hand, owns and operates the largest Internet search engine in the world.
So what happened?
In 2004, Google began a book project dubbed the “Library Project” that involved the digital scanning of books. Google has scanned more than twenty million books that were under copyright without obtaining permission to copy these works. Google maintains digital copies of these books on its servers and back-up tapes. The search engine giant analyzes the book scans and creates a searchable index for each book scanned.
Judge Chin found five advantages of Google’s project: 1) it provides a new and efficient way for readers and researchers to find books; 2) it promotes “data-mining” and “text-mining” for better analysis of books; 3) it expands access to books; 4) it preserves books and gives them new life; and 5) it benefits authors and publishers.
But the Authors Guild didn’t quite agree. In 2005, the Authors Guild brought a class action against Google for copyright infringement.
In its defense, Google argued that its use constituted Fair Use under §107 of the Copyright Act (17 U.S.C. § 107). Fair use is a defense to a claim of copyright infringement and permits the use of copyrighted works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” The doctrine of Fair use looks at four factors: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education 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; 4) the effect of the use upon the potential market for or value of the copyrighted work.
Under the first factor, Judge Chin found Google’s use of the copyrighted works to be highly transformative, due in large part to the search function available for the digital copies. Transformative use was also found in the fact that the book text has been transformed for purposes of substantive research. Importantly, Judge Chin did not find that Google Books superseded or supplanted books because Google’s use of the books is not a tool to actually read the books. While Google is a commercial enterprise, it does not sell the books, run ads on pages with the books, or sell the snippets of books it displays.
Under the second factor, Judge Chin surprisingly found that the nature of the copyrighted works weighs in favor of fair use because the vast majority of the works are non-fiction as opposed to fiction. To further support his finding, he pointed out that the books at issue are available to the public.
Under the third factor, it is noted that Google’s project copies the entire work, which weighs against fair use. However, Judge Chin noted that courts have held that copying the entirety of a work may still be fair use. He reasoned that it is significant that Google limits the amount of text it displays in response to a search and found that this factor only weighed slightly against a finding of fair use.
Under the fourth factor, Judge Chin found that Google Books enhances the sale of books and benefit of copyright holders because it provides a way for works to become noticed and for potential buyers to find online retailers who sell the books.
In taking these four factors into consideration, even if the Authors Guild demonstrates a prima facie case of copyright infringement, Google’s use of the works constitutes fair use. Judge Chin also wrote that Google Books provides significant public benefits. Then he dismissed the case.
Judge Chin’s application of the law demonstrates a deep understanding the spirit of the law along with the mechanics of fair use. His decision, which comports with the necessary advancement of technology, is one that should be heeded by future jurists trying to analyze ever-evolving technology in the face of a sometimes-stagnant statute. The decision’s praise across the Internet is deserved.