Google has won the latest battle in its long-running dispute with the US Authors' Guild over its plan to create a digital library of every book in the world. On 14 November 2013, US Circuit Judge Denny Chin ruled in favour of Google in the matter of The Authors' Guild, Inc et al v Google Inc (05 Civ. 8136 (DC) (SDNY No. 14, 2013)) ("Authors' Guild v Google"), determining that the Google Books project was permissible under the "fair use" defence in US copyright law.

Background

In 2004, Google announced that it was planning to pursue an ambitious digital books project, termed Google Books. Google Books consisted of two programs: the Partner Program (initially called Google Print), encompassing some 2.5 million books displayed with the permission of book publishers and other rights holders; and the Library Project, encompassing some 20 million books (to date) which have been digitised from the collections of a number of major libraries, notably the New York Public Library, the Library of Congress, and the libraries of the universities of Oxford, Harvard, Stanford, California and Michigan, but without the permission of rights holders.

Under the Library Project, Google created an index of all scanned books which enables users to search the full text of books for a word or phrase, returning a list of the most relevant books in which the search term is found, along with links to sellers of the books or libraries which possess the books in their collections. Users may also view "snippets" of books, representing a verbatim extract of one-eighth of a page. Users are prevented from viewing the entire text of books via a system in which at least one snippet on each page and one out of every ten entire pages in a book are blanked-out and cannot be viewed.

Legal proceedings

In September 2005, the Authors' Guild, along with the named plaintiffs Jim Bouton (a former New York Yankees player who wrote Ball Four, his autobiography), Betty Miles and Joseph Goulden, commenced litigation against Google alleging that they had infringed copyright law by pursuing the Library Project without the permission of the copyright holders. The plaintiffs requested $750 for every book scanned without authorisation and an additional $750 in statutory damages for every book copied, distributed or displayed in violation of copyright law – estimated by Google to total more than $3 billion. Google's defence was that the Library Project was permissible as "fair use" under s.107 of the US Copyright Act (17 USC s.107) (see below).

In March 2011, the parties agreed a $125 million settlement of the dispute, but this was rejected by Judge Chin amid concerns that it would grant Google a de facto monopoly to copy books. In May 2012, Judge Chin granted permission for the Authors' Guild to sue in a class action, but this was in turn rejected in July 2012 by the Second US Circuit Court of Appeals, which considered Chin's judgment to be premature, ruling that the merits of the fair use defence must be evaluated first. The judgment handed down by Chin on the 14 November 2013 in Authors' Guild v Google deals with this question of whether Google's actions constitute fair use.

Fair use under US law

Under US law, fair use operates as a defence to a claim of copyright infringement. It is similar, though broader in scope, than the defence of "fair dealing" under UK copyright law. Fair use is codified in s.107 of the Copyright Act (17 USC s.107), which provides that:

[T]he 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.

Of key importance in considering fair use is whether the use of the copyrighted work is "transformative", in the sense that it goes beyond merely reproducing the original work by adding something new of a further purpose or different character.

The judgment

In order to determine whether Google's actions constituted fair use, Judge Chin considered each of the four factors outlined above in light of the facts of the case, and found as follows:

  1. Purpose and character of the use – Chin considered Google's use of copyrighted works to be "highly transformative" through the use of book snippets to facilitate searching and by transforming book text into data for the purposes of research. Although recognising that Google is a commercial enterprise and that it does benefit commercially from its use of books in the sense that users are drawn to its websites, factors which generally weigh against a finding of fair use, Chin concluded that Google does not engage in the direct commercialisation of copyrighted works. Overall, the purpose and character of Google's use of copyrighted works was considered to "strongly favour" a finding of fair use.
  2. Nature of the copyrighted work – The vast majority of the books scanned by Google are non-fiction, which are accorded a lower level of protection under US copyright law than works of fiction. The books are also published and available to the public. Chin considered these reasons to favour a finding of fair use.
  3. Amount and substantiality of portion used – Chin recognised that Google scans the full text of books, however he considered this to be necessary for its search function to operate and noted that Google limits the text which it displays in response to a search through the use of snippets and blank pages. Overall, these reasons were considered to weigh slightly against a finding of fair use.
  4. Effect of use upon potential market or value – The plaintiffs asserted that Google's project would act as a "market replacement" for books and that users would be able to access the entire text of books by performing multiple searches. Chin dismissed both arguments, determining that, on the contrary, Google Books would enhance the sale of books to the benefit of copyright holders by providing a way for books to be discovered. Chin highlighted that Google prevents users viewing entire works through the use of snippets and blank pages and that it provides links to booksellers on its websites, making it easy for readers to order books. These factors were considered to weigh strongly in favour of fair use.

Overall, Chin considered that Google Books provides "significant public benefits" as an "invaluable research tool", a repository for out-of-print and old books and in promoting access to books for print-disabled or underserved communities, whilst maintaining "respectful consideration" for the rights of authors. Chin therefore entered judgment in favour of Google, ruling that its actions did constitute fair use under US copyright law.

Analysis

Google's success strengthens the fair use defence under US law for online content and search engine providers who facilitate searching and research. Although the books programme has, for Google, always been something of a side-project in its corporate operations, the ruling cements its market leadership as a search provider – and opens the door for competitors to replicate the program.

However, the impact of the judgment should be not overstated. Fair use under US law is a fact-specific matter and, as such, the bearing which the ruling in this case may have on fair use issues in subsequent litigation concerning the internet should not be overstated. For the same reason, the ruling does not provide carte blanche for competitors seeking to enter the book-scanning market, who may themselves become embroiled in expensive litigation regarding fair use if they do so.

The Authors' Guild have declared their intention to appeal the decision and, until the results of that appeal are known, Judge Chin's ruling cannot be treated as definitive. However, industry reaction in the US suggests that the decision would be affirmed on appeal.  

Impact in the UK

The decision in Authors' Guild v Google only applies to Google's activities within the US. Therefore, although the judgment means that it is lawful for Google to scan books in the US, Google risks infringing copyright and exposing itself to litigation by rights-holders in other jurisdictions if it scans, stores or hosts books outside of the US.

As noted above, the concept of fair dealing in the UK is more narrowly drawn than its US counterpart and only applies to acts relating to specific activities. The decision in Authors' Guild v Google could therefore not be easily transposed to any similar dispute which might arise in the English courts. Having said that, readers may be aware that following the Hargreaves Review of the UK's intellectual property laws, consideration is being given to widening fair dealing such that it would be similar in scope to fair use.

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