Google’s Book Scanning is “Fair Use,” After Over A Decade of Debate - Fordham Intellectual Property, Media & Entertainment Law Journal
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Google’s Book Scanning is “Fair Use,” After Over A Decade of Debate

Google’s Book Scanning is “Fair Use,” After Over A Decade of Debate

In 2004, Google announced “Google Print,”1 a book-scanning project that aims to provide a search engine and database of all of the world’s books. Since then, Google has digitized more than 20 million books,2 creating a database with the potential to become the largest digital archive of human knowledge. This is progressing through various partnerships with publishers, authors, and libraries such as Stanford, Columbia, the University of California, and the New York Public Library.3 “Google Print” was subsequently renamed to “Google Books.”4 The project instantly received enormous feedback from various communities, including authors and publishers, who criticized the project for copying and displaying copyrighted works to the public.

In 2005, Authors Guild filed a class action suit against Google, accusing them of “massive copyright infringement.”5 After an initial rejection of a settlement between the parties in 2011, and another rejection of Authors Guild’s class certification in 2013, the district court dismissed the lawsuit, stating that Google’s use of the copyrighted works was “fair use.”6 However, in 2014, Authors Guild appealed to the Second Circuit Court of Appeals, and began lobbying Congress to create a national digital library for authors to be paid for the use of their works.7

Last Friday, the Second Circuit unanimously affirmed that Google Books’ function as a search engine for books and its display of online excerpts constitutes “fair use” and is legal.8 The three-judge panel emphasized the fact that Google’s digital copies of the books provide “information about Plaintiffs’ books,” but do not amount to a “substantial substitute” for them.9 The court stated that the snippets merely “show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest.”10 In its opinion,11 the court considers the four fair use factors. First, Google Books’ ability to use search terms to identify books of interest to the consumer is “transformative.” The second factor, “nature of the copyrighted work,” was not given much weight. Third, while Google makes an unauthorized copy of the entire original work, it only displays a “snippet view” to each user, which is not a substantial amount. Lastly, the court found that although the snippet function “can cause some loss of sales,” the copy was not a competing substitute.

The Second Circuit’s message is thus this: Google Books provides an enormous benefit to the public by making it easy for them to find books they want to read and buy; copyright holders benefit equally because Google Books creates a market of interested buyers for their books. If this ruling continues to be upheld, it could inspire numerous book-scanning projects by other companies and organizations. In fact, while Google has been curtailing its book-scanning in recent years, the Internet Archive, a non-profit organization, is currently digitizing over 1,000 books per day.12 Other similar rulings, such as Authors Guild, Inc. v. HathiTrust,13 will also continue to boost confidence in these institutions and expand the boundaries and scale of allowable book-copying.

 


  1. Google Books Historyhttp://www.google.com/googlebooks/about/history.html [http://perma.cc/SCM9-8F8Y] (last visited Oct. 22, 2015).

  2. Joe Mullin, Appeals court rules that Google book scanning is fair use, Ars Technica (Oct. 16, 2015, 11:37 AM), http://arstechnica.com/tech-policy/2015/10/appeals-court-rules-that-google-book-scanning-is-fair-use/ [http://perma.cc/J4RV-GBCL].

  3. Joe Mullin, Appeals court rules that Google book scanning is fair use, Ars Technica (Oct. 16, 2015, 11:37 AM), http://arstechnica.com/tech-policy/2015/10/appeals-court-rules-that-google-book-scanning-is-fair-use/ [http://perma.cc/J4RV-GBCL].

  4. Google Books Historyhttp://www.google.com/googlebooks/about/history.html [http://perma.cc/SCM9-8F8Y] (last visited Oct. 22, 2015).

  5. Paul Aiken, Authors Guild Sues Google, Citing “Massive Copyright Infringement”, The Authors Guild (Sept. 20, 2005), https://www.authorsguild.org/industry-advocacy/authors-guild-sues-google-citing-massive-copyright-infringement/ [http://perma.cc/857F-H9XZ].

  6. The Authors Guild, Inc. v. Google, Inc., No. 1:05-cv-08136 (S.D.N.Y. Nov. 14, 2013), available at http://www.documentcloud.org/documents/834877-google-books-ruling-on-fair-use.html [http://perma.cc/3PT6-TGQD].

  7. Gary Price, The Authors Guild Files Brief in Google Books Appeal & Proposes That Congress Establish a National Digital Library, infoDocket (Apr. 11, 2014),  http://www.infodocket.com/2014/04/11/authors-guild-files-brief-in-google-books-appeal-says-congress-should-create-a-national-digital-library/ [http://perma.cc/225E-QBTK].

  8. Jacob Gershman, Appeals Court Backs Google in Copyright Lawsuit Over Book Scanning, The Wall Street Journal (Oct. 16, 2015, 10:57 AM), http://blogs.wsj.com/law/2015/10/16/appeals-court-backs-google-in-copyright-lawsuit-over-book-scanning/ [http://perma.cc/X8EM-5RJ6].

  9. The Authors Guild v. Google, Inc., No. 13-4829-cv (2d Cir. Oct. 16, 2015), available at http://www.ca2.uscourts.gov/decisions/isysquery/ba7a8b55-1f21-4e93-b3e0-e12001eb6193/1/doc/13-4829_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ba7a8b55-1f21-4e93-b3e0-e12001eb6193/1/hilite/ [http://perma.cc/BN58-78W6].

  10. The Authors Guild v. Google, Inc., No. 13-4829-cv (2d Cir. Oct. 16, 2015), available at http://www.ca2.uscourts.gov/decisions/isysquery/ba7a8b55-1f21-4e93-b3e0-e12001eb6193/1/doc/13-4829_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ba7a8b55-1f21-4e93-b3e0-e12001eb6193/1/hilite/ [http://perma.cc/BN58-78W6].

  11. The Authors Guild v. Google, Inc., No. 13-4829-cv (2d Cir. Oct. 16, 2015), available at http://www.ca2.uscourts.gov/decisions/isysquery/ba7a8b55-1f21-4e93-b3e0-e12001eb6193/1/doc/13-4829_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ba7a8b55-1f21-4e93-b3e0-e12001eb6193/1/hilite/ [http://perma.cc/BN58-78W6].

  12. Dick Eastman, Google Books Reduces its Digitizing and Preservation of old Books while Internet Archive Increases its Efforts at the Same Thing, Eastman’s Online Genealogy Newsletter (Mar. 28, 2015), http://blog.eogn.com/2015/03/28/google-books-reduces-its-digitizing-and-preservation-of-old-books-while-internet-archive-increases-its-efforts-at-the-same-thing/ [http://perma.cc/AN9R-BMGD].

  13. Authors Guild, Inc. v. Hathitrust, No. 12-4547 (2d Cir. Nov. 14, 2012), available at https://dockets.justia.com/docket/circuit-courts/ca2/12-4547 [http://perma.cc/Z2NY-7YLT].

Auran Buckles

Auran Buckles is a second year day student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. She is constantly in search of life inspirations via her travels in many parts of the world.