Nearly two years ago, we wrote on this blog about the Southern District of New York’s decision ruling that the Google Books Library Project was protected by the fair use doctrine.  Earlier this month, the Second Circuit affirmed that decision, in what may well turn out to be the final word on the legality of Google’s ambitious project. In practical terms, this decision means that for now, after more than a decade of litigation, Google Books is legally in the clear.

The case has been in litigation for nearly a decade.  In 2005 authors filed suit on behalf of a putative class claiming that Google had infringed their copyrights by scanning, digitizing, indexing, and making publicly available short “snippets” of their books.  Through its Google Books project, Google has made digital copies of more than 20 million books, which were submitted to it for that purpose by major libraries (without the permission of the submitted works’ authors).  Google makes these books searchable by internet users, who can then view short “snippets” of, and basic information about, books that contain their searched-for terms.  It stores the information on its servers, and also provides each library with access to digital copies of the works it submitted. The plaintiffs sought injunctive and declaratory relief as well as damages.

In March 2011, the district court rejected a proposed $125 million settlement, citing possible copyright and antitrust issues.  Authors Guild v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011).  The following year, the court ruled that the authors could proceed as a class, see 282 F.R.D. 384 (S.D.N.Y. 2012), but the Second Circuit later vacated that ruling as premature and instead directed the trial court to consider Google’s fair-use defense, noting that that issue would “inform and perhaps moot” the class-certification issue.  See 721 F.3d 132, 134 (2d Cir. 2013).

That directive proved prescient.  In late 2013, the district court granted Google’s motion for summary judgment on the issue of fair use, and ordered the case dismissed.  See 954 F. Supp. 2d 282 (S.D.N.Y. 2013.)  The plaintiffs appealed to the Second Circuit (Docket No. 13-4829), which has now affirmed the district court’s decision.  On appeal, the issue was whether Google’s copying of these books is protected by the fair use doctrine, which provides a defense against copyright infringement claims.

Federal copyright law provides four non-exclusive factors (see 17 U.S.C. § 107) to be considered in determining whether a given use of copyrighted material is “fair use,” and therefore permissible without the copyright holder’s consent: (1) the purpose and character of the use (for example, whether it is commercial or educational); (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.

The appellate panel held that Google’s copies serve a very different purpose than the original works; the project augments public knowledge by making the books searchable, and by making available certain information about the books, but does not create a substitute for the actual books themselves.  The authors emphasized Google’s ultimate commercial motivation, arguing that although Google derives no revenue directly from Google Books, the project is nevertheless part of Google’s strategy for dominating the internet search market.  The court dismissed these concerns as insufficient justification for denying Google’s fair-use defense, noting that there is no strict presumption against fair use simply because the defendant is a for-profit enterprise; rather, a commercial motivation need not “outweigh a convincing transformative purpose and absence of significant substitutive competition with the original.”

The plaintiffs emphasized Google’s copying of the entirety of each book, but the court responded that even total copying can be fair use where the copying “was reasonably appropriate to achieve the copier’s transformative purpose and was done in such a manner that it did not offer a competing substitute for the original.”  The court emphasized that the copying of the entirety was necessary to accomplish Google’s searchability objectives, and that the full copy is not revealed to the public; rather, the public sees only the “snippet view,” which is carefully limited.

In its examination of the fourth factor, the court observed that, even using Google’s “snippets” strategically, a user of Google Books might be able to compile, at best and with great effort, a collection of “discontinuous” fragments of the book, and would not pose significant harm to the value of the authors’ copyrights.  The plaintiffs further argued that even if the Google Books project doesn’t infringe plaintiffs’ books themselves, it infringes authors’ derivative rights to apply search functions to their work, and deprives authors of possible revenue or benefits they might gain by licensing their work for search purposes.  But the Second Circuit was unconvinced, noting that the types of licensing opportunities to which plaintiffs referred would involve very different functions than Google’s, including far more extensive access to the full works.  Moreover, the court observed that an “author’s derivative rights do not include an exclusive right to supply information . . . about her works.”

Overall, the unanimous three-judge panel took pains to mention the many ways in which Google Books benefits the public, including by making research more widely accessible, maintaining information about out-of-print books, and helping the public efficiently identify works that will be of interest to them.  In this vein, the opinion’s discussion of the history of copyright and fair use emphasizes that these legal concepts do not exist solely to protect authors; rather, “the ultimate, primary intended beneficiary is the public.”

Beyond this litigation, some have speculated that this decision might pave the way for other mass-digitization projects.  However, those interested in such projects should keep in mind that fair use analysis is highly case-specific, and the Second Circuit’s reasoning is carefully tailored to the particulars of Google’s model, processes, and safeguards; different projects might be treated quite differently under the case-by-case jurisprudence of fair use.  More generally, as another commentator has noted, the decision represents an important exploration of fair use in the digital age, as litigants continue to pose novel questions about how our centuries-old copyright law should apply in the context of disruptive technological innovation.

And the legal community is intrigued by the “full-circle” nature of the opinion; it was authored by Judge Pierre Leval, whose influential 1990 Harvard Law Review article on fair use explored the concept of “transformativeness.”  That article was later cited in the Supreme Court’s landmark decision, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), which formed an important cornerstone of modern fair use case law and which is cited extensively in the Google Books decision.  Appellate courts in recent years have spilled a lot of ink over what makes a use transformative for purposes of fair use, with at least one court warning against putting too much emphasis on transformativeness when that concept appears nowhere in the copyright statute.  For his part, a quarter-century after his law review article, Judge Leval alluded to the extensive examination the concept of transformativeness has generated, and warned against “oversimplified reliance” on the term.  He explained that transformativeness is “a suggestive symbol for a complex thought, and does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use”; rather, a “would-be fair user of another’s work must have justification for the taking.”  Courts continue to delve into the nuances of fair use, but, as Judge Leval sums up, “Attempts to find a circumspect shorthand for a complex concept are best understood as suggestive of a general direction, rather than as definitive descriptions.”  Fair use remains a complex and difficult issue in copyright law, but this case adds to the growing body of thoughtful case law in this area.