The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the latest installment of the long-running copyright litigation between the Authors Guild and Google over the Google Books project, the U.S. Second Circuit Court of Appeals has now held that Google's "copying" and "public distribution" of copyright-protected books to allow full-text searching through those works (and the display of "snippets" of text from the works) is protected as a noninfringing "fair use" under the Copyright Act.
The opinion, by Judge Pierre N. Leval—the author of a highly influential law review article on the fair use doctrine ("Toward a Fair Use Standard," 103 Harv. L. Rev. 1105 (1990) ) and a number of important decisions (in the district court and CA2) on the scope of the doctrine—is well-crafted and quite persuasive. Here's the gist of it:
Google's making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs' books without providing the public with a substantial substitute for matter protected by the Plaintiffs' copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google's provision of the snippet function.
Plaintiffs' contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author's derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works.
Google's profit motivation does not in these circumstances justify denial of fair use. Google's program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google's provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in dispute. (emphasis added)
I'm not sure that the opinion breaks any new ground in copyright law—a virtue, since like most good judicial opinions, it makes the outcome appear quite sensible and even pre-ordained (one reason among many that, though the Authors' Guild will probably seek certiorari in the Supreme Court, I would be truly stupefied in the Court were to grant the petition and hear the case).
There is, though, some useful clarification of the kinds of "transformations" that should be considered "transformative" for purposes of the fair use doctrine:
Transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright's overall objective of contributing to public knowledge.…
[One] complication that can result from oversimplified reliance on whether the copying involves transformation is that the word "transform" also plays a role in defining "derivative works," over which the original rights holder retains exclusive control. Section 106 of the Act specifies the "exclusive right" of the copyright owner "(2) to prepare derivative works based upon the copyrighted work." The statute defines derivative works largely by example, rather than explanation. The examples include "translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation," to which list the statute adds "any other form in which a work may be . . . transformed."
[P]aradigmatic examples of derivative works include the translation of a novel into another language, the adaptation of a novel into a movie or play, or the recasting of a novel as an e-book or an audiobook. While such changes can be described as transformations, they do not involve the kind of transformative purpose that favors a fair use finding. The statutory definition suggests that derivative works generally involve transformations in the nature of changes of form. By contrast, copying from an original for the purpose of criticism or commentary on the original or provision of information about it, tends most clearly to satisfy Campbell's notion of the "transformative" purpose involved in the [fair use] analysis. (emphasis added)
There's also some useful clarifying language to the effect that just because a use might cause the copyright holder to suffer some market harms, that alone is not enough to tilt the fourth fair-use factor—the "effect of the [copying] use upon the potential market or value of the copyrighted work"—in the copyright holder's favor:
We recognize that the snippet function can cause some loss of sales. There are surely instances in which a searcher's need for access to a text will be satisfied by the snippet view, resulting in either the loss of a sale to that searcher, or reduction of demand on libraries for that title, which might have resulted in libraries purchasing additional copies. But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect upon the potential market for or value of the copyrighted work. (emphasis added)
Overall, a big win for fair use—and (not coincidentally!) for the public. The ability of copyright holders to block the Google Books and Google Library services has always struck me as one of the more persuasive indictments of our current copyright regime—sort of a poster child in the battle for more sensible copyright laws—and it's good to see the court ruling in favor of the overwhelming public benefit here.