On the 16th of October 2015, the United States Court of Appeals for the Second Circuit made clear that Google Books is legal. The Court ruled for Google against the Authors Guild, a professional group of
published writers which had alleged that Google Library Project and Google Books project infringed their copyrights. In its ruling, the Court wrote:

Through its Library Project and its Google Books project, acting without permission of rights holders, Google has made digital copies of tens of millions of books, that were submitted to it for that purpose by major libraries. Google has scanned the digital copies and established a publicly available search function. An Internet user can use this function to search without charge to determine whether the book contains a specified word or term and also see “snippets” of text containing the searched-for terms. A snippet is a horizontal segment comprising ordinarily an eighth of a page. In addition, Google has allowed the participating libraries to download and retain digital copies of the books they submit, under agreements which commit the libraries not to use their digital copies in violation of the copyright laws.

The Appeals Court pointed out that:

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. 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. For nearly three hundred years, since shortly after the birth of copyright in England in 1710, courts have recognized that, in certain circumstances, giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand public knowledge.

Section 107 of the US copyright law provides:

The fair use of a copyrighted work . . . for purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(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 upon the potential market for or value of the copyrighted work.

It wasn’t until the Campbell ruling in 1994 that courts sought to explain the factors for finding fair use. Each factor stands as part of a multifaceted assessment of the crucial question: how to define the boundary limit of the original author’s exclusive rights in order to best serve the overall objectives of the copyright law to expand public learning while protecting the incentives of authors to create for the public good. The Supreme Court has made clear that some of the statute’s four listed factors are more significant than others. The Court observed in Harper & Row Publishers, Inc. v. Nation Enterprises that the fourth factor, which assesses the harm the secondary use can cause to the market for, or the value of, the copyright for the original, “is undoubtedly the single most important element of fair use.” In Campbell, the Court stressed also the importance of the first factor.

The first factor focuses on whether and to what extent the new work is “transformative”. If the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings, this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society, judge Leval wrote in an article in the Harvard Law Review in 1990. According to Leval transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses. The fourth factor focuses on whether the copy brings to the marketplace a competing substitute for the original so as to derive the rights holder of significant revenues. Even if the purpose of the copying is for a valuably tranformative purpose, such copying might nonetheless harm the value of the copyrighted original if done in a manner that results in widespread revelation of sufficient significant portions of the original as to make available a significantly competing substitute. Google’s snippet view however, does not threaten the rights holders with any significant harm to the value of their copyrights, the court argued.

In sum, the Court concludes that: Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google's commercial nature and profit motivation do not justify denial of fair use.

This isn’t only good news for fans of Google Books. It helps makes the legal boundaries of fair use clear to other organizations who may try to take advantage of it, including libraries and non-profits, Robinson Meyer writes in the Atlantic. Libraries must however use its digital copy only in a manner consistent with the copyright law and to take precautions to prevent dissemination of their digitial copies to the public at large, otherwise such libraries may be liable for copyright infringement. The Authors Guild can appeal the judgment but experts say it is unlikely they will be successful given the history of previous decisions in the case.



Photo:  Boston Public Library by Jan David Hanrath

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