Copyright Fair Use Defense Applies to Digital Scanning of Books by Google

In a decision we predicted when the Second Circuit Court of Appeals sent the case back to the District Court to consider whether Google had a valid fair use defense against claims of copyright infringement directed at their Google Books project, Second Circuit Judge Denny Chin, sitting as the District Court Judge, granted summary judgment for Google and recently dismissed the eight year old case. Authors Guild v. Google, Inc., No. 05 Civ. 8136 (DC) (S.D.N.Y. Nov. 14, 2013).

In 2004, working with several major research libraries, Google began to digitally scan books from library collections. During the scanning process, Google also used optical character recognition software to create electronic searchable text. Google delivered a digital copy of each book scanned to the respective participating library, and made the digital text available for online searching using the Google Books search engine, though only “snippets” of the text can be viewed online. With now over twenty million books fully scanned and digitized, the Google Books project has enabled librarians, scholars and students to gain access to previously unknown materials and research methods. Google has neither obtained the authors’ permission nor compensated the authors for the digital copying and display of their copyrighted works.

The Authors Guild, along with several individual authors, including Jim Bouton, the well-known former Major League Baseball player, inventor of Big League Chew shredded bubble gum in a pouch and author of the best-selling book Ball Four, commenced an action for copyright infringement in 2005 in the Southern District of New York before then District Court Judge Denny Chin.

After years of litigation, the parties thought they had settled the case on a class-wide basis for $125 million, only to learn in 2011 that Judge Chin (by then having been elevated to the Second Circuit Court of Appeals) rejected the settlement as unfair to the proposed class members. Authors Guild v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011). Judge Chin thereafter certified the plaintiffs’ class of authors for the case to proceed as a class action. Authors Guild v. Google Inc., 282 F.R.D. 384 (S.D.N.Y. 2012). After Google’s interlocutory appeal of class certification, the Second Circuit vacated
the class certification and noted in its decision that “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues,” and remanded the case to Judge Chin “for consideration of the fair use issues.” Authors Guild v. Google Inc., 721 F.3d 132, 134, 135 (2d Cir. 2013).

The fair use defense to copyright infringement is found in Section 107 of the U.S. Copyright Act, Title 17 of the United States Code. The statute recognizes that even though one of the author’s exclusive copyright rights may be violated (such as unauthorized reproduction or distribution), copyright infringement will not be found if the fair use defense applies. The statute, which defines the scope of “fair use” to include purposes such as criticism, comment, education, scholarship, and research, references four factors to be considered in applying the fair use defense: the purpose and character of the use (including whether the use is “transformative,” meaning that it adds something new to the original work or seeks to advance a different purpose, and whether the use is for commercial or educational purposes); the nature of the copyrighted work; the amount of the copyrighted work being used; and the effect of the use on the potential market or value of the copyrighted work.

For the purpose of his analysis of whether the Google Books program constituted fair use, Judge Chin assumed that Google was infringing the copyright in the books by creating and posting digital copies without authorization. However, after carefully applying each of the four fair use considerations, Judge Chin found without hesitation that Google was entitled to the fair use defense. He found that Google’s digital book scanning (i) “advances the progress of the arts and science,” (ii) maintains “respectful consideration for the rights of authors and other creative individuals,” (iii) “has become an invaluable research tool,” (iv) “preserves … out-of-print and old books” … and “gives them new life,” (v) “facilitates access to books for print-disabled and remote or underserved populations,” and (vi) “generates new audiences and creates new sources of income for authors and publishers.”

Like Superman, this is for good, and against evil—or in the words of Judge Chin, “all society benefits” from Google Books.

But after eight years the battle for good is not over yet. In a related case argued to the Second Circuit only several weeks ago, The Authors Guild is challenging another Southern District of New York decision that held that the HathiTrust Digital Library initiative (in which participating university libraries allow their books to be digitized and used for other purposes, such as for the blind) was entitled to the fair use defense. Authors Guild v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012). And The Authors Guild has also vowed to take an appeal of Judge Chin’s Google Books decision to the Second Circuit (and perhaps beyond). The extent to which the digitization of copyrighted content can test the limits of fair use remains uncertain – though these recent decisions certainly exemplify the growing trend towards appropriate Internet literary freedom.