Intellectual Property Rights

Authors Guild, Inc. v. Google, Inc.

804 F.3d 202 (2d Cir. 2015)

Facts

Google partnered with major libraries to scan millions of books.
It created a searchable electronic database known as Google Books.
Users could search for words or phrases and receive information showing where those terms appeared.
For most copyrighted books, Google displayed only small “snippets” surrounding the searched term.
It used technological restrictions to prevent users from reconstructing substantial portions of a book through repeated searches.
Google also gave participating libraries digital copies of books supplied by those libraries, subject to use and security restrictions.
The Authors Guild and individual authors alleged that scanning entire books, storing digital copies and displaying snippets infringed copyright.
Google relied upon fair use.
The District Court ruled for Google, and the authors appealed.

Whether scanning entire copyrighted books to create a searchable index is fair use.
Whether displaying small snippets infringes authors’ rights.
Whether giving secured digital copies to contributing libraries defeats fair use.
Whether complete copying can be justified by a transformative purpose.

A use is transformative where it employs a work for a new function rather than merely providing the original expression to readers.
Fair use may permit copying an entire work where complete copying is reasonably necessary for the new purpose.
The four factors consider:
purpose and character;
nature;
amount;
market effect.
Search, text analysis and data mining differ from ordinary reading.
Market harm requires meaningful substitution for the original or a traditional derivative market.
Security measures and limits on public access are relevant.

Google did not make the complete books available for ordinary reading.
The scanning enabled:
full-text search;
location of books;
linguistic research;
identification of historical word usage;
discovery of otherwise obscure material.
These functions were highly transformative because they used textual content as data and an index.
Complete scanning was necessary because a search engine cannot identify every occurrence of a term without processing the entire work.
The amount copied internally was therefore proportionate to the purpose.
Snippets revealed only limited context.
Google blacklisted certain portions and restricted repeated searches to prevent reconstruction of the book.
The snippets helped users determine relevance but did not ordinarily satisfy demand for the book itself.
The Court accepted that authors might prefer to license scanning rights.
However, copyright owners do not automatically control every transformative use merely because a hypothetical licensing market could be created.
The relevant question was whether Google displaced sales or legitimate reading markets.
Evidence showed that Google Books could increase discovery and sales.
Library copies were limited to books the libraries already owned and were provided under security obligations.
The Court therefore found no meaningful market substitution.
The public benefits of search and scholarship strongly supported fairness, though public benefit alone would not excuse an otherwise substitutive use.

The Second Circuit held that Google’s scanning, search functions and limited snippet display were fair use.
Complete copying was justified by the transformative indexing purpose.
The secured library-copy arrangement also did not defeat fair use.
Use this case for: digitising complete books for non-substitutive search and text analysis may be fair use where public access is carefully limited