This blog has previously covered the putative class action involving the Google Books Library Project, Google’s ongoing effort to collect and scan millions of books (included copyrighted works) to make them searchable online.  The case of Authors Guild v. Google (No. 05-08136) was initiated in 2005 by authors claiming that Google’s process of scanning, digitizing, indexing, and making publicly available short “snippets” of their books is copyright infringement. In March 2011, the Judge rejected a $125 million settlement proposed by the parties, citing possible copyright and antitrust issues. The case is important because, in a very fundamental way, the scope of the Google Books project is so ambitious and groundbreaking that there are few instructive parallels to turn to; no one has ever tested the “fair use” doctrine in quite this way before.

In May 2012, the court ruled that the authors could proceed as a class, but this past July, the Second Circuit vacated the class-certification ruling and directed the trial court to consider Google’s fair-use defense in connection with plaintiffs’ class-certification motion.  Google had argued, among other things, that it intended to assert a “fair use” defense (an equitable doctrine that permits reasonable use of copyrighted material without the owner’s consent for certain purposes).  The Second Circuit held that class certification was premature because the trial court had not yet addressed Google’s fair-use defense, and because that issue would “necessarily inform and perhaps moot” the class-certification question.

This week, the trial court granted Google’s motion for summary judgment on the issue of fair use, and ordered the case dismissed. In the 30-page ruling, the court reviewed the four non-exclusive factors (see 17 U.S.C. § 107) to be considered in determining fair use—the purpose and character of the use, e.g., commercial or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

For the first factor, the court focused on what it called the “highly transformative” nature of Google’s use of the copyrighted works; “Google Books digitizes books and transforms expressive text into a comprehensive world index that helps readers, scholars, researchers, and others find books. . . .  The use of book text to facilitate search through the display of snippets is transformative.”  In support, the court cited cases upholding the use of thumbnail images of photographs for search purposes.  In the court’s view, Google Books “does not supersede or supplant books” because it is not generally to be used to read the books in their entirety; rather, it makes them searchable, thereby creating new information and insights.  Although Google Books is a commercial enterprise, which tends to weigh against fair use, that was not dispositive; in particular, the court noted that Google does not directly commercially exploit the copyrighted works in that it does not sell the scanned books or snippets and does not run ads on the pages that contain snippets.

The second factor, the court held, also favored Google.  Google Books includes only published works (both fiction and nonfiction, but mostly the latter), books that are still in print and books that are long out of print.  As for the third factor, the court concluded that it weighed “slightly” against a finding of fair use; it acknowledged that Google does scan the full text of each entire book, but cited case law holding that “copying the entirety of the work is sometimes necessary to make a fair use” of it.  Because Google’s goal is to offer full-text searchability, “full-work reproduction is critical.”  Moreover, Google limits the amount of text it displays in response to a user’s search.

Finally, the fourth factor weighed “strongly” in favor of a fair-use finding.  The court noted plaintiffs’ concerns that Google’s scans would serve as a “market replacement” for the books, particularly because users could create a series of searches that would access the whole book.  The court opined, however, that those fears were unfounded, particularly given “security measures” taken by Google to prevent users from viewing a complete copy of a book by accessing and manipulating the snippets.  “To the contrary, a reasonable factfinder could only find that Google Books enhances” book sales and benefits copyright holders, by alerting users to the existence of books they might not otherwise discover, and providing users with links to purchase or borrow those book from a library.

The court concluded by emphasizing the many public benefits of the Google Book project, including its myriad uses for scholarly research, its ability to preserve old and out-of-print books, and its provision of increased access to books and resources for persons with disabilities and for geographically remote or underserved communities.  “Indeed, all society benefits,” said Judge Chin.

Any appeal will, of course, be closely watched, given its importance to copyright holders, libraries and museums (who are increasingly interested in digitizing their collections), and the public.  But the drawn-out procedural history of this case since 2005 may have worked in Google’s favor; with the passage of time, the idea of scanning the world’s books has come to seem less radical and more inevitable, and courts and the public have been able to see how the project has evolved and how many significant benefits have emerged.