April 24, 2014

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A Good Day at the Googleplex

            Judge Chin has issued his decision in the Google Book Search case, and it’s a win for Google. For those of you who have been following the litigation, it’s been a long trip through the arcana of class certification. Today’s decision, however, finally gets to the merits of Google’s fair use defense under the Copyright Act. The outcome is not surprising in light of last year’s decision in the related HathiTrust case, which held that Google’s mass digitization of books on behalf of academic libraries to facilitate scholarship and research and to aid print-disabled library patrons is fair use. The Google Books case could have come out differently, however, given that Google, unlike an academic library, is a commercial enterprise and that the service it provides through Book Search reaches far beyond an academic audience. In addition, the amount of text that Google displays in Book Search results (multiple contextual “snippets” including the search term) is greater than the amount displayed by the HathiTrust (only the page numbers and number of hits per page for the search term). Both of those factors—the commercial or non-profit nature of the use and the amount of text displayed—are relevant to the fair use analysis.

           A court considering the fair use defense to a claim of infringement is required by statute to analyze and weigh four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of portion borrowed in relation to the original work as a whole; and (4) the effect of the borrowing on the market for, or value of, the original work. Courts also consider, in a more holistic way, whether the use in question furthers the underlying purpose of the copyright system to promote learning and the advancement of knowledge.

           With respect to the purpose and character of the use, a court considers whether the use is commercial (as opposed to non-profit) and whether it transforms the original work by either modifying the content of the original or adapting the original to a new, secondary use. The more transformative the use, the more likely it is to be fair. With respect to Book Search, Judge Chin found that Google is a commercial actor, but that fact does not disqualify Google from a finding of fair use, because Google “does not sell the scans it has made of books…; it does not sell the snippets that it displays; and it does not run ads on the About the Book pages that contain snippets.” In sum, the court concluded, “[i]t does not engage in the direct commercialization of copyrighted works.” On the question of the tranformativeness of the use, the court found that Google’s use of the scanned books is highly transformative, in large part because the service is not a service for reading books. Rather, it facilitates research and scholarship by “transform[ing] expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” It allows “snippets of text to act as pointers directing users to a broad selection of books.” Moreover, the court said, Google’s full-text scanning of works has enabled the development of entirely new fields of research that involve text mining and data mining. Google’s scanning and display of the snippets is not an end in itself, but a means to the very different end of enabling readers and researchers to find things they could not otherwise find in any practical way.      

           On the second factor, the nature of the copyrighted work, a court considers whether the copyright in the original work is thin (as for non-fiction) or thick (as for fictional works, which typically contain a high degree of expressive content). Works with “thick” (i.e., strong) copyrights are entitled to a higher level of protection, meaning that less can be borrowed from them fairly. Given that millions of books were scanned and that “the vast majority of the books in Google Books are non-fiction,” Judge Chin found that the second factor, like the first, favored a finding of fair use.

           The third factor is the amount and substantiality of the portion borrowed.  Analysis of this factor has both a quantitative and a qualitative component. The court asks not only how much was borrowed, but whether the expressive heart or core of the work was borrowed. In cases where the entire original work is copied verbatim, this factor usually tilts toward a finding of infringement.But for highly transformative uses, borrowing of the whole work is not necessarily out of bounds. Here, the court said, it was necessary to make complete, verbatim copies to accomplish the purpose of indexing:“full-work reproduction is critical to the functioning of Google Books.” As to the amount of text that Google displays in snippets, the court found it to be sufficiently limited. The first three factors, therefore, tilted toward fair use.

           The last factor is the effect of the borrowing on the market for the original.  This factor requires consideration of whether the defendant, through its use of the original work, is providing a market substitute for the original and thereby depriving the copyright owner of revenue to which he or she is entitled. The court found that not to be the case with Google Books, because only snippets of individual works are displayed, and it would be virtually impossible for a user to cobble the snippets together into a full or coherent substitute for a copy of the original work.  Not only does Google’s use not harm the market for the original scanned works, the court found, it may actually enhance the market by providing authors an opportunity to be noticed that they would not have in the world of brick-and-mortar bookstores. On top of providing the opportunity to be noticed, the court pointed out, Google provides links to online sellers from which authorized copies of scanned works can be purchased.This factor, too, weighed in favor of a finding of fair use.

           Not one of the four fair use factors weighed against fair use in this case, making it easy for Judge Chin to conclude that Google was entitled to summary judgment on the merits.The opinion is an efficient and complete analysis of the required factors, and I think it will hold up well on appeal. Stay tuned for the next round.