15/11/2013 02:11

US court finds that Google Books does not infringe copyright

The District Court's decision of 14 November 2013 in the case of Authors Guild v. Google is a major victory for Google, and a serious blow for the Authors Guild and other opponents of Google Books. 


In 2004, Google announced agreements with several research libraries in the US and abroad to digitally copy books in their collections. Since then, Google has scanned more than twenty million books worldwide. Google delivered digital copies to participating libraries, created an electronic database of books, and made text available for online searching through the use of "snippets." However, many of the books scanned by Google were still under copyright. Google did not seek to obtain permission from the copyright owners for these usages, and it did not compensate the copyright owners. In 2005, plaintiffs (i.e., the Authors Guild and several authors whose books were scanned by Google and made available for search on Google’s website without their permission) brought a class action against Google, claiming copyright infringement.[1] 


On 14 November 2013, the United States District Court of the Southern District of New York (S.D.N.Y) granted summary judgment to Google, accepting that Google’s use was a “fair use” and thus not an infringement of the plaintiffs’ copyrights. This decision applies to Google's book search index, the full-text database and the "snippets" that it displays in Google Books. However, this decision does not apply to the display of full-text pages of books. If Google publishes full-text pages (more than snippets), it usually does so with the consent of the publishers who own the copyrights to the works.


This decision is a major victory for Google and a serious blow for the Authors Guild and other opponents of Google Books. It also marks a major turn from the earlier decisions in this case. In March 2011, the court had rejected a proposed settlement between Google and the Authors Guild[2] (same court, same judge as the one in the current November 2013 decision).[3]


Public benefits associated with Google Books


In the new November 2013 decision, the District Court stressed the many benefits associated with Google’s library project. First, the court stated that Google Books provides a new and efficient reference tool for readers and researchers to find books. Second, the court found that Google Books significantly promotes "data mining" or "text mining" research possibilities. Third, Google Books has the potential to greatly expand access to books (for instance, for traditionally underserved populations, but also for print-disabled persons, etc.). Fourth, Google Books gives old and out-of-print books a new life and guarantees their future accessibility. Finally, the court noted that Google Books benefits authors and publishers by displaying links to sellers of the books and to libraries that have the books on their shelves.


Google Books is a "fair use" of copyrighted books


On the question of Google’s “fair use” defense, the District Court verified the four statutory fair use factors (section 107 of the US Copyright Act) in detail, and found that the total balance of fair use tipped in favor of Google.


First fair use factor: purpose and character of the use


On the first fair use factor, the “purpose and character of the use”, the District Court found that Google's use of the copyrighted works was highly transformative, and that the first factor thus strongly favored a finding of fair use.


The court found that Google Books uses the text of paper format books to transform them into a comprehensive word index that helps readers, scholars, researchers, and others to find books. The court noted that Google Books is an important tool to identify and find books. The court also found that the use of book texts to facilitate search through the display of snippets is transformative.


Furthermore, the court stated that Google Books is also transformative in so far that it transforms book texts into data for purposes of substantive research, such as data mining and text mining, thereby opening new fields of research.


Likewise, the court noted that Google Books does not supersede or supplant books (in other words, it does not compete with the copyrighted books), because it is not a tool to be used to read books, merely to find and search books. This part of the decision seems open to criticism. In my opinion, it may well be that internet users will refrain from buying books because they have already found all the information they needed on Google Books. Not all potential book buyers are interested in the full content of a book, especially in the field of non-fiction books used for research purposes (and this is precisely the type of books that are made available by Google Books).


Finally, the court downplayed the fact that Google is a for-profit company and that Google Books is a commercial enterprise (a commercial use normally weighs against fair use, but is not dispositive). The court found that the commercial character of the use was mitigated by the fact that Google does not sell the scans or the snippets and that it does not run advertisements on Google Books. Put otherwise, Google does not engage in the direct commercialization of the books. This part of the decision may also be open to criticism and comments (especially if one takes into account that Google makes tons of money through its advertisement programs). Personally, I think that the court was right in minimizing Google's character as a commercial company. If one reads the text of Section 107 of the US Copyright Act, it is clear that it is the character of the 'use', not of the 'user' that matters. In other words, even though Google is a commercial company, if its Google Books program does not contain advertisements and does not generate revenue by itself, this factor cannot be seen as weighing against Google. Also, the court already concluded that the use was a 'transformative' use. Under the case law of the US Supreme Court, a 'transformative' character will outweigh a commercial character (see the Supreme Court's decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)).


Second fair use factor: nature of the copyrighted work


On the second fair use factor, the “nature of the copyrighted work”, the District Court found that the vast majority of the books were published non-fiction books. These elements (published and factual/informational nature of the original works) also favored a finding of fair use.


Third fair use factor: substantiality of the copying


With regard to the third fair use factor, the “amount and substantiality of the portion used in relation to the copyrighted work as a whole”, the District Court found that this factor weighed slightly against a finding of fair use. The court took special account of the fact that Google scans the books in their entirety, but added that this finding is somewhat mitigated by the facts that such full-work copying is an essential element for its full-text search functionality to function (i.e., essential to its 'transformative' purpose; in case of a non-transformative purpose under the first factor, this would not have played a role), and that Google limits the amount of text displayed in response of each search (it displays only snippets, no full-text).


Fourth fair use factor: effect on the potential market for the original work


The fourth and final statutory fair use factor is the “effect of the use upon the potential market for or value of the copyrighted work.” On this factor, the District Court noted that Google does not sell its scans, and that the scans do not have the effect of replacing the books. The court found it unlikely that someone would take the time and energy to input countless searches to get enough snippets to comprise an entire book.[4]


The court found that, to the contrary, Google Books provides a way for authors' works to become noticed and thus enhances the sales of books to the benefit of copyright owners. As mentioned above, this effect may not be as one-sided as the District Court puts it. It may well be that certain users are not interested in obtaining a full copy of the book and may be satisfied by the information that they find in Google’s snippets; this would in my opinion constitute a negative effect on the potential market for the original works (and thus tipping the fourth factor against a finding of fair use). The court further stressed that Google provides links to booksellers to make it easy to order a book: “In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.” In sum, the fourth factor was found to weigh strongly in favor of fair use.


Conclusion: Google Books is a "fair use" and not a copyright infringement


On balance, the District Court concluded that Google Books provides significant public benefits, and that the fair use analysis weighs in favor of fair use (only the third fair use factor weighed slightly against fair use; the other fair use factors weighed in favor of fair use, including the important first and fourth factors). In other words, under this decision, Google Books does not infringe the copyrights (or authors' rights as we would say in Europe) of the authors and other copyright owners (publishers, etc.).


Personally, I think that the outcome of this lawsuit makes sense (although I do not agree with all of the arguments of the court). Google's book project no doubt provides many benefits to readers - especially researchers - and I agree that Google's use is a transformative use (i.e., it provides added value and a new meaning to the books and does not merely supersede the scanned books; this added value lies mostly with increased research opportunities). However, on the fourth fair use factor, I believe that the effect is not as clear cut as the court puts it. I can imagine that Google Books may have a negative effect on the potential market of some of the scanned books. This depends on how much information is made available (in that sense, the fourth factor turns back to the third and first factors). If Google publishes more than simple 'snippets', than its use is probably a substantial taking under the third factor (to the effect that this factor will weigh heavily - and not slightly - against fair use). This would also entail that the fourth factor will weigh against fair use. I personally have the impression that it is difficult for an outsider to have a clear view on this. When I use Google Books, I sometimes see that mere snippets are made available, but in other cases entire pages or even entire chapters are accessible. You can only suppose that Google has obtained permission from the copyright owners for such uses (they don't seem fair use  to me). Finally, a lot will depend on how Google will develop its Google Books project in the future. Will Google try to monetize its project to profit from its market position (for instance, by adding ads or by directly selling the content of the books)? This would tip the fourth factor (and probably the entire fair use balance) against Google Books... 


Last but not least, this decision was rendered at first instance and is still open to appeal. It is widely expected that the Authors Guild will lodge an appeal against the District Court's decision. 


Do not hesitate to  contact  me for any questions regarding this decision. 


Author: Bart Van Besien


Finnian & Columba



Attorney - Lawyer - Belgium - European Union (E.U.)

Specialized in intellectual property law (copyright, trademarks, patents, domain names, etc.) and media law.

[1] The Authors Guild is the largest organization of published authors in the United States. It advocates for the copyright and contractual interests of published authors in the United States. It is to be noted that the Court of Appeals, in an earlier decision, vacated the class certification. This means that the decision applies only to the plaintiffs that are specifically mentioned in the decision (not to other authors). However, the decision is still a precedent that - at least at this stage - decides the legality of Google Books.

[2] And the Association for American Publishers.

[3] This proposed settlement would have provided Google with a way to sell copies of so called “orphan works” (works for which it is impossible to identify or locate the copyright owners). Under this settlement, Google promised to pay a portion of the revenue generated by Google Books to a “Book Rights Registry”, a register operated by authors to track copyright owners of orphan works and pay them their royalties. However, the court found that the settlement went to far in giving Google rights over orphan works without properly implementing the copyright owners of these works. See Authors Guild v. Google, Inc., 770 F.Supp.2d 666 (2011).

[4] The District Court added that this is simply not possible since certain pages and snippets are blacklisted. Also, the individual would need to have a copy of the book already in his possession in order to piece the different snippets together in a coherent fashion.





Bart Van Besien

Finnian & Columba
K. De Deckerstraat 20A
2800 Mechelen, Belgium

+32 486 626 355
+32 15 29 42 57