Google and Fair Use

Fair use is a legal doctrine which permits limited use of copyrighted material without first acquiring permission from the holder of the copyright. Google’s widespread use of copyrighted material has recently tested the boundaries of fair use.

Through its Library and Google Books Projects, without the permission of rights holders, Google makes digital copies of more than 20 million books obtained from libraries available for Internet searches. These functions enable an Internet user to search without charge to determine whether any of the books contains a specified word or term and also see “snippets” of text containing the search terms. Google has also allowed participating libraries to download and retain digital copies of the books they submit under agreements which commit the libraries not to use the digital copies in violation of copyright laws.

A searcher can use the Google functions to view as much as 16% of the text of each book, although the snippets are not sequential, but scattered randomly throughout the book. The snippets are arbitrarily and uniformly divided by lines of text, and not by complete sentences, paragraphs or any measure dictated by content. A snippet view never reveals more than one snippet per page in response to repeated searches for the same term. The search results contain no advertising, and Google receives no payment in connection with the searches.

The Author’s Guild and a number of writers, including ex-New York Yankees pitcher Jim Bouton, author of Ball Four, sued, claiming Google’s actions infringed on their copyrights. The result of the challenge was an opinion1 of the United States Court of Appeals for the Second Circuit, which is important, not only for the copyright holders, but for the principle of fair use itself. Copyright law is a murky area under the best of circumstances. Interpreting the concept of fair use against the backdrop of new technologies adds a new layer of complexity.

The goal of copyright is to expand public knowledge by enabling creators of work to have control over the copying of their works, by giving them the financial incentive to create informative, intellectually enriching work for public consumption. Thus, while authors are an important beneficiary of the copyright, the primary beneficiary is the public.

Since the creation of the concept of a copyright in England in 1710, courts have recognized that, in certain circumstances, giving authors total control over the copying of their works tends to limit, rather than expand, public knowledge. English courts therefore developed a doctrine, eventually named “Fair Use,” which permits copying in certain circumstances which further the purpose of the copyright. As Lord Ellenborough explained, “While I think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles on science.”2

The concept of fair use was first included in our Copyright Act in 1976. Under the law, fair use depends on the consideration of four factors in any particular case: (1) the purpose and character of the use; (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 of the potential market for the copyrighted work.3

Perhaps the most important of these factors is the purpose and character of the use– specifically, whether it is “transformative.” A transformative use is one that communicates something new and different about the original or expands the utility of the original. In other words, a transformative use serves the overall objective of the Copyright Act of contributing to public knowledge. Transformative uses are such things as translations, criticism, comment and research. Google has in effect transformed more than 20 million works into a comprehensive word index.

The Google search functions, in the view of the Court of Appeals, constitute a transformative use because they make available information about copyrighted works without affording the searcher a substitute for the copyrighted originals. The project helps to preserve the books (most of which are out of print), gives underserved populations access to excerpts and enables scholars to analyze large amounts of information through “data mining.”

The fact that Google has a profit motive is not determinative. The fragmentary and scattered nature of the snippets revealed by a search do not, in the Court’s view, bring to the marketplace a competitive substitute for the originals and thus do not significantly devalue copyrights.

It appears that the Court got it right. What at first blush looks to be an attempt by the owner of the most successful search engine to use the work of others to enlarge its web dominance, upon closer examination appears to further the purpose of the copyright laws, which is not to guarantee authors a living or to provide them with exclusive control over their work, but rather to confer an overall benefit on society.

Endnotes

1 The Authors Guild, Inc. v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

2 Carey v. Kearsley, 170 Eng. Rep. 679, 681, 4 Esp. 168, 170 (1802). Lord Ellenborough was the first Baron of Ellenborough, a title in the Peerage of the United Kingdom created for the lawyer, judge and politician Sir Edward Law, who served as Chief Justice of the King’s Bench from 1802 to 1818. The ninth Baron of Ellenborough today resides at the family seat, Bridge House, near Market Harborough, Leicestershire.

3 17 U.S.C. §107.