Fair Use Lives! Part II

On November 14, 2013, the Southern District of New York handed down its decision in The Authors Guild v. Google.  On November 20, I posted in this blog an overview of the case and the court’s decision; check the November Archives to see that posting if you missed it or need a refresher on the facts.  Today, I will explain the court’s fair use analysis.  (I had planned to post this last week, but the GoldieBlox v. Beastie Boys situation intervened.)

(For an explanation of fair use and the four factors used in a fair use analysis, see Bare Bones of Fair Use.)

How did the court apply fair use?

The first fair use factor (purpose and character of the use), asks (1) whether the use is closer to being a commercial use (disfavors fair use) or a non-profit educational use (favors fair use); and (2) whether the use is transformative (favors fair use).   Although the transformative character of a use does not guarantee a finding of fair use, transformative works, in the words of the Supreme Court, “lie at the heart of the fair use doctrine,” because they further the very goal of copyright (to promote the creation of new works).  Thus, the more transformative the use, the less significance will be given to the other factors.

The court found Google’s uses to be “highly transformative.”  By using the “snippet” display, Google “transforms expressive text into a comprehensive word index,” thus “us[ing] words for a different purpose” than the original.  Google’s uses were also transformative in that they “transformed book text into data for purposes of substantive research, including data mining and text mining …, thereby opening up new fields of research.”  In doing so, “Google Books has created something new in the use of book text.”  Finally, the court said, rather than superseding or supplanting the original books, Google Books “‘adds value to the original.’”

In considering the commercial purpose and character of the use, the court was careful to focus on the actual use Google was making, rather than the status of Google itself.  (Courts sometimes confuse the two or do not distinguish; the fair use analysis is all about the actual use at issue, not the user.)  Noting that although Google itself is a for-profit entity, and even “largely a commercial enterprise,” the court proceeded to emphasize that Google did not directly profit from its copying, display, or distribution of the books or portions thereof, in that it sells neither the scanned copies of the books nor the displayed snippets.  Furthermore, the court said, “even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes.”

The court thus held the first factor to “strongly” favor fair use.

The second fair use factor considers the nature of the work being used.  Because all of the books were published and most non-fiction, this factor favored fair use (although the court noted in a footnote that the parties agreed this factor played only a small role in the fair use analysis).

The Supreme Court has emphasized that the fair use factors must be “weighed together, in light of the purposes of copyright law.”  In a sense, we see this more in association with the third factor (amount and substantiality of the portion used) than the others, in that the question asked is not simply “what amount and substantiality did the defendant take,” but “why?”  Why did the defendant take both the amount and the particular content it took?  Specifically, did the defendant take more than, or something other than, what was necessary to achieve its purpose?

In addressing the third factor, the Google Books court found that copying the books in their entirety “is critical to the functioning of Google Books.”  It also pointed out that Google limits the amount displayed.  Thus, even though copying in full usually means this factor disfavors fair use, the court held it to weigh only “slightly against” fair use.

Concerning the fourth factor (effect on the potential market for the work), the plaintiffs argued that the Google Books project negatively impacts the market for the books at issue because the scanned copies would act as a “market replacement” for the books and because users could piece together an entire book by manipulating terms in multiple searches.  “Neither suggestion makes sense,” the court said.  It noted that Google does not sell the scans; that it would be impossible for a user to piece together an entire book by making multiple searches; and that although each library received one digital copy of each book from its collection, the library already owned the printed book.  (Interestingly, the court did not cite Section 108 of the Copyright Act, which allows a library to make up to three copies of a book, including by digitization, for preservation purposes.)  Thus, this factor “weighs strongly in favor” of a fair use finding.

The Google Books court extensively praised the value Google Books provides to the public.  It both opened and closed its analysis with such statements.  Combining the “significant public benefits” of Google Books with its analysis of the four fair use factors, the court held Google’s uses to clearly constitute fair use and dismissed the case, summarizing as follows:

In my view, Google Books provides significant public benefits.  It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.  It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books.  It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books.  It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life.  It facilitates access to books for print-disabled and remote or underserved populations.  It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.