GOOGLE BOOK SEARCH FAIR USE, JUDGE CHIN HOLDS

We have been following the ups and downs of The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, since the inception of this blog. After the parties’ grand bargain, which had the potential to create a unique on-line repository of virtually all the world’s literature under Google’s auspices, was rejected, primarily due to antitrust concerns, the case came to center on the Google Books search engine, which allows full-text searching of unlicensed copyrighted books, but displays only small “snippets” as search results.

Last time we checked in, the Second Circuit Court of Appeals had decertified the plaintiff class, and ordered Judge Denny Chin to  rule on Google’s fair use defense first. As we noted,  the appellate panel’s “comments at the oral argument and its suggestion that resolution of fair use could ‘moot’ class certification strongly telegraph[ed] acceptance of Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.” Not surprisingly, in a 30-page opinion issued November 14, Judge Chin so ruled.

Judge Chin found that Google’s use of copyrighted books was highly transformative:

Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative. . . . the snippets help users locate books and determine whether they may be of interest. Google Books thus uses words for a different purpose — it uses snippets of text to act as pointers directing users to a broad selection of books.

Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text — the frequency of words and trends in their usage provide substantive information.

Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it “adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.”

As noted here many times, in the current state of fair use doctrine, especially in the Second Circuit, a finding that a use is highly transformative is virtually a showstopper.  Having found the use highly transformative, Judge Chin’s treatment of other fair use factors – such as the commercial nature of the use, the amount of the material used, and the effect of the use on the market value of the originals was rather cursory. Notably, although the plaintiffs argued that “Google Books will negatively impact the market for books and that Google’s scans will serve as a ‘market replacement’ for books,” it does not appear that they put in any evidence to that effect. Judge Chin held that on the record before him “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.” It seems odd that the plaintiffs could not at least show that there was a triable issue of fact on this central issue, but according to Chin “when pressed at oral argument to identify any factual issues that would preclude the award of summary judgment, plaintiffs’ counsel was unable to do so.”

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