Second Circuit Upholds Google Books Fair Use Defense

Second Circuit Upholds Google Books Fair Use Defense

In a strong opinion, the United States Court of Appeals for the Second Circuit ruled that the Google Books project enjoys fair use protection of it work under the Copyright Action Sec. 107.  You can read the opinion here (pdf).

The Court’s opinion, drafted by Judge Pierre N. Laval, a noted expert on fair use, takes pains to describe why Google Books effort is a fair use under the copyright law, concluding:

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. (Slip Op., 46)

However, Judge Laval took the opportunity to explain the purpose of the Copyright Act as well as the purpose behind fair use. The Copyright Act’s ultimate beneficiary is the public:

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. …Thus, 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. (Slip Op., 12-13).

According to the Court, the purpose of Google Books is to provide information about the books and their contents, not to act as a viable, unauthorized substitute for a copyrighted work. This ruling allows researches to actually search millions of books for relevant passages of books that may be of interest, ultimately leading the progress of knowledge by the publication of new works of entertainment or knowledge.

Key Takeaway

The Court elucidated a strong distinction between “transformation” under the Fair Use Doctrine and nature of derivative works. Under the Copyright Act Sec. 106, original authors of works are imbued with derivative rights, which are rights to the work when presented in different formats. For example, a book that is translated into another language, or changed into digital form, or used as the basis of a movie. Such derivative rights are undisturbed by this ruling.

On the other hand, a transformed work under Fair Use is one whose “purpose and character” are something new and thus transformative. Admittedly the language is confusing, but here is a simplified version:

A derivative work changes the format and presentation of the original text but retains its original purpose. A transformative work under Fair Use alters the purpose of the original or provides a different use for the text.

Readers should take note, the issue of transformation of purpose is but one factor in the Fair Use assessment and is not necessarily going to lead to a finding of fair use.