Google Books: Fair Use and Public Benefits

by Kenneth Crews on November 14, 2013

After eight years of litigation, including complications of class actions and two massively complex proposed settlements, the U.S. district court in Manhattan ruled today that the scan search of tens of millions of copyrighted books by Google is within fair use.  The court dismissed the case.  The Authors Guild, the lead plaintiff, promptly announced plans to appeal the ruling.

The basic facts of the case are recounted in many places, but the Google Books project has involved building a digital library of millions of full-text books, many still under copyright protection, and allowing the public to search the database.  The public access to the collection, however, is sharply restricted.  A search of keywords will retrieve only brief “snippets” from the books, with links to retailers and libraries where readers may find and acquire the full book.  The court ruled that Google was acting within fair use when it built the digital collection and provided public searchability.

The court also ruled that Google was within fair use when it made copies of the books available back to the libraries that supplied the originals.  The court’s opinion is a strong endorsement of the importance of library services:

“Google provides the libraries with the technological means to make digital copies of books that they already own.  The purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.  The libraries then use these digital copies in transformative ways.  They create their own full-text searchable indices of books, maintain copies for purposes of preservation, and make copies available to print-disabled individuals, expanding access for them in unprecedented ways.  Google’s actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use.”

Indeed, the legal ruling is at its core an analysis of the four factors of fair use, but perhaps the most telling part of the opinion are the pages that Judge Chin devotes to recounting the benefits of the Google Books project for readers, researchers, and the public in general.  Some of the court’s findings:

•    “Google Books provides a new and efficient way for readers and researchers to find books.”
•    “It makes tens of millions of books searchable by words and phrases.”
•    “It provides a searchable index linking each word in any book to all books in which that work appears.”
•    “Google Books has become an essential research tool, as it helps librarians identify and find research sources….”
•    It “makes the process of interlibrary lending more efficient….”
•    It “facilitates finding and checking citations.”
•    “Google Books…has been integrated into the educational system – it is taught as part of the information literacy curriculum to students at all levels.”
•    It “greatly promotes” data mining or text mining.
•    “Google Books expands access to books.”
•    “In particular, traditionally underserved populations will benefit as they gain knowledge of and access to far more books.”
•    “Google Books provides print-disabled individuals the potential to search books and read them” in acceptable formats.
•    “Google Books facilitates the identification and access of remote and underfunded libraries” making decisions about acquisitions and interlibrary loans.
•    “Google Books helps to preserve books and give them new life.”
•    “Google Books benefits authors and publishers” with links to retailers where readers can purchase the books or to libraries that have the book in the collection.  “Google Books will generate new audiences and new sources of income.”

Given that list of virtues, the examination of the four factors of fair use seems almost incidental, but the factors are at the core of fair use.  The court did give the factors careful analysis, and the benefits of Google Books shaped much of the outcome.  Most significantly, the innovative and beneficial uses of Google Books fueled the argument that the first factor (the purpose of the use) should favor fair use.  Many of the benefits of Google Books involve transformative uses of the text, also greatly pressing the first factor toward fair use.

The benefits further tipped the fourth factor (the effect of the use on the market) toward fair use.  Google Books helps readers find books, and it offers links for buying the books from retailers.  Similarly, Google Books enables libraries to learn about books of interest and to assess whether to buy them for the collection.  “In this day and age of on-line shopping, there can be no doubt that Google Books improves book sales.”

The second factor (nature of the work) receives brief analysis, once the court determined that all of the books are published and most are nonfiction.  The third factor (amount and substantiality of the work) is also relatively succinct, with the court noting the importance of scanning full book in order to accomplish the search function, but with only snippets delivered to users.  Final count: All four factors weigh in favor of fair use.

Many of us will long debate the significance of this ruling and its implications.  The court of appeals will necessarily add to the conversation.  For now, however, this ruling joins court decisions about HathiTrust and electronic reserves in demonstrating that even extensive digitization can be within fair use where the social benefits are strong and the harm to rightsholders is constrained.  There will be more to come as we transition into a new era of copyright, technology, and even reading.

Kenneth Crews
November 14, 2013