The Authors Guild's never-ending lawsuit against Google for its book scanning project has been hit with yet another blow. The 2nd Circuit appeals court has told the Authors Guild (once again) that Google's book scanning is transformative fair use
. This is not a surprise. Though this case has gone through many twists and turns, a few years ago it was also before the 2nd Circuit on a separate issue (over the appropriateness of it being a class action lawsuit) and the 2nd Circuit panel ignored
that question, saying that it shouldn't even matter because it seemed like this was fair use. Thus it was sent back
to the district court, where Judge Danny Chin correctly said that the scanning was fair use
. That ruling was appealed, and the AG trotted out some truly nutty legal theories
(arguing that it wasn't fair use because someone like Aaron Swartz might hack into Google's computers and free the books).
These arguments did not work. The 2nd Circuit has affirmed the lower court ruling and given another nice appellate ruling establishing the importance of fair use -- and
a reminder that, yes, commercial uses can still be fair use:
Google’s making of a digital copy to provide a search function is a transformative use,
which augments public knowledge by making available information about Plaintiffs’ books
without providing the public with a substantial substitute for matter protected by the Plaintiffs’
copyright interests in the original works or derivatives of them. The same is true, at least under
present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that
Google has usurped their opportunity to access paid and unpaid licensing markets for
substantially the same functions that Google provides fails, in part because the licensing markets
in fact involve very different functions than those that Google provides, and in part because an
author’s derivative rights do not include an exclusive right to supply information (of the sort
provided by Google) about her works. Google’s profit motivation does not in these
circumstances justify denial of fair use. Google’s program does not, at this time and on the
record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through
incursions of hackers. Finally, Google’s provision of digital copies to participating libraries,
authorizing them to make non-infringing uses, is non-infringing, and the mere speculative
possibility that the libraries might allow use of their copies in an infringing manner does not
make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in
There are some really great statements in the ruling, which isn't a huge surprise, given that it was done by Judge Pierre Leval, who has written some of the most thoughtful
things about fair use. For example, he clearly and directly notes that the purpose of copyright is to benefit the public
The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their
works, thus giving them a financial incentive to create informative, intellectually enriching
works for public consumption. This objective is clearly reflected in the Constitution’s
empowerment of Congress “To promote the Progress of Science . . . by securing for limited
Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const., Art. I, § 8,
cl. 8) (emphasis added). Thus, while authors are undoubtedly important intended beneficiaries
of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge
copyright seeks to advance by providing rewards for authorship.
This, of course, is the same argument that we've made here in the past many times (often mocked by copyright extremists). Notice that the section of the Constitutional copyright clause that Leval chose to highlight is the ever-important "to promote the progress" language. In a footnote, Leval similarly notes that UK copyright law actually comes with a similar preamble: "for the
Encouragement of Learning."
From there, Leval has a short discussion on the history of fair use, and the key Supreme Court rulings on it, before jumping into the necessary four factors
, which is carefully written and nuanced. It's worth reading in its entirety, but a few snippets. First, the court finds that the use of search here makes the Google books program transformative:
the purpose of Google’s copying of the original
copyrighted books is to make available significant information about those books, permitting a
searcher to identify those that contain a word or term of interest, as well as those that do not
include reference to it. In addition, through the ngrams tool, Google allows readers to learn the
frequency of usage of selected words in the aggregate corpus of published books in different
historical periods. We have no doubt that the purpose of this copying is the sort of transformative
purpose described in Campbell as strongly favoring satisfaction of the first factor.
Then there's the question of whether Google's snippet view is fair use, and again, the court finds that it is:
Google’s division of the page into tiny snippets is designed to show the searcher just
enough context surrounding the searched term to help her evaluate whether the book falls within
the scope of her interest (without revealing so much as to threaten the author’s copyright
interests). Snippet view thus adds importantly to the highly transformative purpose of identifying
books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use
But, you say, Google is a big for-profit business, and doing this to make money, so how can that be fair use? By this point, we've debunked the "commercial use can't be fair use" myth so many times on Techdirt it almost doesn't seem worth repeating, but since people always
bring it up... here's what the court says:
While we recognize that in some circumstances, a commercial motivation on the part of
the secondary user will weigh against her, especially, as the Supreme Court suggested, when a
persuasive transformative purpose is lacking... we see no reason in this
case why Google’s overall profit motivation should prevail as a reason for denying fair use over
its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted
forms of fair use, such as news reporting and commentary, quotation in historical or analytic
books, reviews of books, and performances, as well as parody, are all normally done
commercially for profit.
On the second factor (the nature of the work) the court notes that it's somewhat unimportant here, but still leans towards fair use.
While each of the three
Plaintiffs’ books in this case is factual, we do not consider that as a boost to Google’s claim of fair
use. If one (or all) of the plaintiff works were fiction, we do not think that would change in any way
our appraisal. Nothing in this case influences us one way or the other with respect to the second
factor considered in isolation. To the extent that the “nature” of the original copyrighted work
necessarily combines with the “purpose and character” of the secondary work to permit
assessment of whether the secondary work uses the original in a “transformative” manner, as the
term is used in Campbell, the second factor favors fair use not because Plaintiffs’ works are
factual, but because the secondary use transformatively provides valuable information about the
original, rather than replicating protected expression in a manner that provides a meaningful
substitute for the original.
Factor three (the amount of the work) is obviously one that the Authors Guild leaned heavily on, but the court is not convinced that it weighs against Google here either, noting that because the use is transformative, copying the entire work is necessary
. The argument here is that the real intent of factor three is to see if the defendant copied more than is necessary
for the transformative use, and that's not true with Google books:
As with HathiTrust, not only is the copying of the totality of the
original reasonably appropriate to Google’s transformative purpose, it is literally necessary to
achieve that purpose. If Google copied less than the totality of the originals, its search function
could not advise searchers reliably whether their searched term appears in a book (or how many
On the question of snippets, the court again finds for Google noting that it's only displaying a small portion of the work -- again, no more than necessary. The court notes that if snippets were done differently, it could impact the fair use analysis, but that Google does a good job of not revealing too much.
Without doubt, enabling searchers to see portions of the copied texts could have
determinative effect on the fair use analysis. The larger the quantity of the copyrighted text the
searcher can see and the more control the searcher can exercise over what part of the text she
sees, the greater the likelihood that those revelations could serve her as an effective, free
substitute for the purchase of the plaintiff’s book. We nonetheless conclude that, at least as
presently structured by Google, the snippet view does not reveal matter that offers the
marketplace a significantly competing substitute for the copyrighted work.
Google has constructed the snippet feature in a manner that substantially protects against
its serving as an effectively competing substitute for Plaintiffs’ books. In the Background section
of this opinion, we describe a variety of limitations Google imposes on the snippet function.
These include the small size of the snippets (normally one eighth of a page), the blacklisting of
one snippet per page and of one page in every ten, the fact that no more than three snippets are
shown—and no more than one per page—for each term searched, and the fact that the same
snippets are shown for a searched term no matter how many times, or from how many different
computers, the term is searched. In addition, Google does not provide snippet view for types of
books, such as dictionaries and cookbooks, for which viewing a small segment is likely to satisfy
the searcher’s need. The result of these restrictions is, so far as the record demonstrates, that a
searcher cannot succeed, even after long extended effort to multiply what can be revealed, in
revealing through a snippet search what could usefully serve as a competing substitute for the
Finally, the all-important fourth factor (the impact on the market). Again, the court finds in favor of Google, noting how unlikely it is that Google's book project is a substitute for actually getting a book:
Especially in view of the fact that the normal purchase price of a book is relatively low in
relation to the cost of manpower needed to secure an arbitrary assortment of randomly scattered
snippets, we conclude that the snippet function does not give searchers access to effectively
competing substitutes. Snippet view, at best and after a large commitment of manpower,
produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a
book. This does not threaten the rights holders with any significant harm to the value of their
copyrights or diminish their harvest of copyright revenue.
Yes, the court notes, it's possible
that it might lead to some lost sales, but that's not enough to find against fair use -- especially since in those cases, it probably means that the amount of information sought was not protectable by copyright in the first place:
the type of loss of sale envisioned above will generally occur in relation to
interests that are not protected by the copyright. A snippet’s capacity to satisfy a searcher’s need
for access to a copyrighted book will at times be because the snippet conveys a historical fact
that the searcher needs to ascertain. For example, a student writing a paper on Franklin D.
Roosevelt might need to learn the year Roosevelt was stricken with polio. By entering
“Roosevelt polio” in a Google Books search, the student would be taken to (among numerous
sites) a snippet from page 31 of Richard Thayer Goldberg’s The Making of Franklin D.
Roosevelt (1981), telling that the polio attack occurred in 1921. This would satisfy the searcher’s
need for the book, eliminating any need to purchase it or acquire it from a library. But what the
searcher derived from the snippet was a historical fact. Author Goldberg’s copyright does not
extend to the facts communicated by his book. It protects only the author’s manner of
I'd also argue that if we're talking about the theoretical rare cases where it leads to a lost sale, it should be noted that it's probably just as likely that Google Books leads to more sales
as people find snippets of books that make them want to buy the full book (I've personally bought a few books because of snippets found through Google's book search.) But the court doesn't go there.
The court then takes on the question of whether or not Google has deprived the Authors Guild of a derivative right to create or license their own search and snippets features. The court dismisses this argument with ease, reminding the Authors Guild of the important fact that fair use is not infringement
, and nothing in copyright includes a special right to limit the ability to search or create snippets:
There is no merit to this argument. As explained above, Google does not infringe
Plaintiffs’ copyright in their works by making digital copies of them, where the copies are used
to enable the public to get information about the works, such as whether, and how often they use
specified words or terms (together with peripheral snippets of text, sufficient to show the context
in which the word is used but too small to provide a meaningful substitute for the work’s
copyrighted expression). The copyright resulting from the Plaintiffs’ authorship of their works
does not include an exclusive right to furnish the kind of information about the works that
Google’s programs provide to the public. For substantially the same reasons, the copyright that
protects Plaintiffs’ works does not include an exclusive derivative right to supply such
information through query of a digitized copy.
Finally, the court laughs off the argument that an Aaron Swartz like hacker might free all of the files in Google's database:
While Plaintiffs’ claim is theoretically sound, it is not supported by the evidence....
Google has documented that Google Books’ digital scans are stored on computers walled
off from public Internet access and protected by the same impressive security measures used by
Google to guard its own confidential information. As Google notes, Plaintiffs’ own security
expert praised these security systems, remarking that “Google is fortunate to have ample
resources and top-notch technical talents” that enable it to protect its data. JA 1558, 1570. Nor
have Plaintiffs identified any thefts from Google Books (or from the Google Library Project).
Plaintiffs seek to rebut this record by quoting from Google’s July 2012 SEC filing, in which the
company made legally required disclosure of its potential market risks.26 Google’s prudent
acknowledgment that “security breaches could expose [it] to a risk of loss . . . due to the actions
of outside parties, employee error, malfeasance, or otherwise,” however, falls far short of
rebutting Google’s demonstration of the effective measures it takes to guard against piratical
hacking. Google has made a sufficient showing of protection of its digitized copies of Plaintiffs’
works to carry its burden on this aspect of its claim of fair use and thus to shift to Plaintiffs the
burden of rebutting Google’s showing. Plaintiffs’ effort to do so falls far short.
Similarly, the court is unimpressed by the Authors Guild's claim that even if Google's own security is good, the fact that it shares scans with libraries who donate books to be scanned, opens up a new line of attack.
Although Plaintiffs describe the arrangement between Google and the libraries in more
nefarious terms, those arrangements are essentially that each participant library has contracted
with Google that Google will create for it a digital copy of each book the library submits to
Google, so as to permit the library to use its digital copy in a non-infringing fair use manner. The
libraries propose to use their digital copies to enable the very kinds of searches that we here hold
to be fair uses in connection with Google’s offer of such searches to the Internet public, and
which we held in HathiTrust to be fair uses when offered by HathiTrust to its users. The contract
between Google and each of the participating libraries commits the library to use its digital copy
only in a manner consistent with the copyright law, and to take precautions to prevent
dissemination of their digital copies to the public at large.
In these circumstances, Google’s creation for each library of a digital copy of that
library’s already owned book in order to permit that library to make fair use through provision of
digital searches is not an infringement. If the library had created its own digital copy to enable its
provision of fair use digital searches, the making of the digital copy would not have been
infringement. Nor does it become an infringement because, instead of making its own digital
copy, the library contracted with Google that Google would use its expertise and resources to
make the digital conversion for the library’s benefit.
As the court points out, sure it's possible that a library might use such files in an infringing matter, but if that happens, then the copyright holders can go after that library. They can't go after Google for the theoretical possibility that someone else might infringe a copyright at some future date.
And, in case you were wondering, there was no dissent at all. This was a unanimous decision by all three judges on the panel, giving yet another complete victory to Google saying that its book scanning project is fair use -- and, as an appeals court ruling, is useful in creating precedent in the all important 2nd Circuit (with some pretty damn good quotes for future cases). This is a big and clear
win for fair use. It's likely that the Authors Guild will try to appeal to the Supreme Court, but without a clear circuit split, it's unclear if the Supreme Court would bother to take up the case.