Authors’ Guild v. Google – A Fair Use victory, and a chance for introspection

After Lenz v. Universal, the US Courts have hit the ball right out of the park once again with yet another Fair Use ruling! This time, the ruling comes from the 2nd Circuit Court of Appeals, New York, in the Authors Guild v. Google. This is a fascinating case with quite some history, which I explore in this post. [Long Post Ahead]

This case started in 2005, and concerns Google’s ambitious Google Books program. The program (which I think all law students, including myself, are very thankful for) consists of the ‘Partner Program’ and the ‘Library Project’. The former hosts material provided consensually by publishers or other rightholders, and the latter digitises books from various libraries, making them searchable online, and provides the libraries with the digital copies of their books (and their books only). Of the libraries participating in this project, some allowed Google to scan only copyright-free works, while others gave it access to in-copyright works as well.

Crucially, where these books are copyrighted, while the full book is searchable, the same isn’t viewable. Substantial portions of these books are not viewable on Books, with Books telling you that this is a ‘preview only’. Books also provides you with links to sellers stocking the book in question in its ‘About this Book’ page.

The plaintiff here, the Authors Guild, had a problem with the Library Project – they argued that Google was infringing their copyright through the above, even if the full content was not visible. Google countered by claiming Fair Use under S. 107 of the US Copyright Act, 17 U.S.C. § 107, and ten years later, here we are!

This dispute was dismissed two years ago by the U.S. Circuit Judge Justice Chin with a summary judgment in favour of Google. The Guild appealed, bringing us to the current judgment. This judgment isn’t exactly surprising, therefore, especially since this is the same Court that passed the judgment in Authors Guild v. HathiTrust, which had similar issues.

The Guild here argued that 1) Google’s use was not transformative, but rather substitutive; 2) regardless of the lack of charge or advertising for Books, Google’s overall commercial purpose precludes a finding of fair use; 3) even if Google is not infringing the plaintiff’s copyrights, it is infringing the plaintiff’s derivative rights in search functions; 4) Google’s creation of digital copies exposes the copyright-owners to the risk of hacking; and 5) Google’s creation of digital copies of the plaintiffs’ books creates a risk of loss of revenues to them, through access allowed by libraries.

The Court here went into a discussion of the roots of copyright law, stating that “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” (emphasis supplied). It discusses S.107 of the US Copyright Act, and the precedents involved therein, then moving on to an issue-by-issue discussion. It starts with the Search and Snippet function, testing it against each of the factors involved in ascertaining fair use under S. 107: 1) the purpose and character of the use, 2) the nature of the subject matter, 3) the amount and substantiality of portion used, and 4) the use’s effect on the commercial market for the matter.

On the first factor, the Court differentiates between ‘transformative purpose’ as necessary for fair use and the ‘transformation’ that creates ‘derivative work’, stating that the latter generally involves a ‘change of form’. It notes that that Google’s ‘use’ aims to provide people with access to information they would otherwise have been denied, and that the purpose here is to provide people with information about the relevant book, which is also why the Snippet view is necessary. It thus holds Google’s use to be ‘transformative’.

It then discusses Google’s Snippet view, the first factor differentiating this case from Hathi Trust, and finds even this to be in favour of a finding of fair use, with a caveat for substitution in the market, discussed later.

Finally, the Court talks about Google’s ‘commercial motivation’, the second factor differentiating this case from HathiTrust. Relying on Acuff-Rose Music, Inc. v. Campbell, it states that there is no reason why Google’s commercial motivation should result in a finding against fair use despite its highly convincing transformative purpose. It, therefore, concludes that the Books project satisfies the first factor.

Moving onto the second factor, the Court notes that the nature of a work, i.e., whether it is factual or fictional, should not affect the question of Fair Use. This pronouncement, if accepted as precedent, marks a crucial change in US Fair Use jurisprudence. The Court finds this factor to be in favour of a finding of fair use, because the ‘use’ here “transformatively provides valuable information about the original”, rather than substituting it.

For the third factor, the Court notes that it basically means that the less you copy, or the less important stuff you copy, the more likely a finding of fair use is, due correlating the amount and substantiality of the ‘copying’ and the substitution. It notes that the copying of entire work(s) does not preclude a finding in favour of fair use, as that depends on the purpose and character of the use.

It finds the Search function to meet the standards of the third factor as well, as a copy of the entirety is necessary for the same, and the full copy is not exposed. It then considers the Snippet view, noting that it is less a question of what is copied, but more one of what is made available to the public. It concludes that ‘as presently structured’, Snippet view does not reveal anything that would be ‘substitution’, and is therefore not ‘substantial’ copying of the Plaintiff’s’ work. It notes that even the Plaintiffs’ researchers were only able to coax out 16% of a book’s content despite extensive attempts, and even this was still ‘fragmentary and scattered’.

Finally, the Court moves on to the fourth factor. The Court notes the importance of this factor, as it is central to the purpose of copyright, and its relationship with the first factor. It states that since the Books project, particularly the Snippet view, does not provide a substitute for the Plaintiffs’ products on the market, this factor is in favour of a finding of fair use. It notes that while there may be ‘some’ readers whose needs are met by the Snippet view, their numbers are not substantial enough to tilt this factor in favour of the Plaintiffs, especially since such readers would probably be looking for facts, and not an author’s expression of them, which are not covered by copyright protection. It noted that due to the way Snippet view functions, it would be a very rare case where the searcher’s interest in the protected part of the authors’ expressions will be satisfied it.

It therefore found Google’s actions to be fair use, and non-infringing on the Plaintiffs’ copyright. Similarly, the Court also dismissed the Plaintiffs’ arguments on the basis of derivative rights under Section 106(2), stating that the Plaintiffs’ copyright does not include an exclusive right to furnish the type of information that Google provides. It emphasises the fact that the protected ‘derivative’ works are of the kind that reproduce the protected part of the original work, which Books does not do.

The Court then considers the Plaintiffs’ claims of Google’s activities exposing their works to the risk of hacking, and again finds in favour of Google due to Google’s strong security practices and the lack of evidence of breaches thereof by the Plaintiff.

The final issue considered by the Court is the potential misuse of the digital copies of the books Google provides to the libraries. It states that since none of the activities that Google participates in infringe the Plaintiffs’ copyright, its provision of the digital versions of its books to the libraries – for much the same purposes – does not count as infringement either. It notes that while there is a potential chance that the libraries may use these copies in a manner that infringes the copyright of their authors, when that happens, the authors can claim infringement. Thus, the Court holds in favour of Google and the libraries across the board, with the Authors Guild ending up in a situation even worse than they were in, after Justice Chin’s judgment two years ago.

The Court notes in the early parts of the judgment that “[t]his copyright dispute tests the boundaries of fair use.” It is perhaps therefore unsurprising that in coming to its decision about this dispute, the Court has arguably reset a lot of the boundaries of fair use, in favour of the rights of the public.

What is notable, though perhaps not exceptional, is the amount of emphasis that has been placed here on the original purpose of copyright and intellectual property laws. This judgment, along with Lenz v. Universal, ask us to rethink and introspect on just what it is that Copyright was meant to be used for, and what it is actually being used for, especially in the context of the recent conclusion of the TPP agreement.