Fair Use Lives!

Last week, a federal district court decided the most important case on copyright fair use in two decades, and libraries, universities, and information users across the country erupted in celebration. The following provides an overview of the opinion. Entries in coming weeks will discuss the court’s analysis and the significance of the case.

Fair use is alive and well

The purpose of U.S. copyright law is defined in the U.S. Constitution. Contrary to much media implication and popular opinion, the purpose is not to protect or reward creators of copyrightable works, but to promote the creation of new works, to promote the growth of the body of human knowledge. The Constitution also provides the means for meeting the goal of copyright: by maintaining a balance between (1) incentivizing creation of new works by granting creators the rights to control others’ uses of their works and (2) limiting those rights so that others may use and build upon the works. And fair use provides the tool for implementing those means. Fair use is the flexible tool whose role is to ensure that uses of copyrighted works furthering the goal of copyright law be allowed, even if they would otherwise amount to copyright infringement.

In Authors Guild v. Google, the Southern District of New York held that the Google Books project provides a shining example of just such a situation. The Google Books project, the court said, “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.”

What happened

In 2004, Google announced its Google Books project. Google had made agreements with several of the largest research libraries in the country, including the New York Public Library, Harvard University, and the Library of Congress, to digitize, in their entirety, millions of print books in the libraries’ collections, many of which are still protected by copyright. The information world, from major publishers to independent authors to libraries, exploded: Could Google do this legally? What would it mean for the publishers and distributors of those books, for individual copyright owners, for libraries? Perhaps most importantly: What would it mean for information users?

Less than one year later, the Authors Guild, representing individual authors, publishers, literary agents, and others in the publishing field, filed suit, alleging copyright infringement. And the game was on!

Over the next eight years, a lot happened. Google modified and tweaked the structure of its program. The parties attempted to end the dispute with a settlement agreement, the terms of which frustrated many close observers of the case. The court rejected the proposed settlement agreement (because the case was filed as a class-action case, it could be settled by an agreement only if the court approved the terms of the agreement). Another lawsuit in a different court addressing similar issues was decided, strongly holding in favor of the defendant’s fair use claim. More legal wrangling between the Author’s Guild and Google ensued. And Google continued to scan, and scan, and scan.

On November 14, 2013, the Southern District of New York held all of Google’s uses to constitute fair use, and, moreover, strongly so.

What the lawsuit was about

The lawsuit focused on what was ultimately titled The Library Project portion of the larger Google Books program. In The Library Project, Google scanned over twenty million books of all types from the collections of participating libraries, the majority of which were out of print – though still protected by copyright. Each participating library was allowed to keep one digital copy of each book scanned from its own collection (but not books from the collections of other participating libraries).

Google search engine users can search the full text of the digitized books. For those books still protected by copyright, the displayed results for each title identified by the search include up to, and no more than, three “snippet views” from the book, as well as an information page that includes a list of known sellers of the book and libraries holding the book in their collections. A “snippet view” is 1/8 of a page of a book displaying the term searched. By displaying the search term in the context of its appearance, the searcher is better able to judge how relevant the book is to her needs.

Several limitations are placed on the display of snippet view results to prevent a determined and patient searcher from piecing together an entire book, snippet by snippet:
• Only one snippet view per page is displayed, regardless of how many times the search term appears on that page.
• No more than three snippets from a single book are shown.
• No matter how many times a user searches for the same term, additional snippets from a given book will not be returned.
• At least one out of every ten pages in every book is “redacted,” or excluded from the display.
• Snippet view results are not given for books made up primarily of discrete entries, such as dictionaries and cookbooks.

Why was the Author’s Guild unhappy?

This is a debatable question. In the lawsuit, the Author’s Guild claimed that Google infringed three rights in the “bundle” of a copyright owner’s rights: (1) the right of reproduction, by scanning the books; (2) the right of distribution, by giving digital copies to the libraries; and (3) the right of public display, by displaying portions of the books in search engine results.

But what was the underlying motive for the lawsuit? In the digital age, corporate copyright owners (e.g., publishers and movie studios) too often tend to panic in the face of the potential for extreme copyright infringement presented by modern technology. It is easier, quicker, and cheaper than ever before to infringe copyright in almost any type of work, and on a large scale. The concerns are legitimate. Unfortunately, the copyright owner industry has not always responded to these concerns in the most productive way. I, along with many of my esteemed colleagues, believe that this lawsuit, and others filed over the past few years, is a good example of an unproductive and downright wasteful response to a legitimate threat.

That being said, I, along with many of my esteemed colleagues, said from the beginning that Google’s uses in this case clearly constitute fair use. So to have a court decision make it official is very welcome!

Why did the court love Google Books so much?

“The benefits of the Library Project are many,” the court said, before spending several pages listing those benefits. In a nutshell, the benefits identified by the court were:
• the ability of “readers, scholars, researchers, and others” to find books using the Google Books full-text searching;
• the value to scholars and researchers of text mining enabled by Google Books;
• making the books available for the first time to underserved populations, such as the sight-impaired;
• helping to preserve books and “give them new life;” and
• benefitting authors and publishers by helping readers and researchers identify books.

Yes, you read that last point correctly. The court later said, “A reasonable fact finder could only find that Google Books enhances the sales of books to the benefit of copyright holders.” Not only does Google Books benefit researchers, the sight-impaired, students, libraries, and the public generally, but it also benefits the very plaintiffs filing suit against it, according to the court! Who could not love a project that benefits “all society?”