In a decision that may have deep and wide-ranging implications for the publishing industry and for future applications of the fair use doctrine, Judge Denny Chin has dismissed the Authors Guild’s eight-year-old lawsuit against Google over its Google Books project.
This decision comes as less than a total surprise to many observers, even though the future of Google Books seemed uncertain following Judge Chin’s rejection of a proposed settlement in early 2011. (In 2012 Google did reach a separate settlement with the Association of American Publishers, which had sued Google specifically over its use of books published by McGraw-Hill, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon & Schuster.) However, an appellate court’s rejection this past summer of Judge Chin’s granting of class status to the plaintiffs contained significant hints that the lawsuit was not going to end well for them—in that decision, the Second Circuit hinted strongly that they found Google’s fair-use defense compelling.
And in the end, Judge Chin agreed. Strongly. In his decision, he reviews the facts and procedural history of the case. Among the facts he lays out are, significantly, a list of five benefits that he feels Google Books offers to society. All quotes in the section below are taken from Judge Chin’s written decision. He cites as factual truths that the Google Books project:
- Increases efficiency of discovery. (“Google Books provides a new and efficient way for readers and researchers to find books… [it] has become an essential research tool.”)
- Makes text-mining possible on a massive scale. (“Google Books permits humanities scholars to analyze massive amounts of data—the literary record created by a collection of tens of millions of books.”)
- Expands access to books. (Google Books “provides print-disabled individuals with the potential to search for books and read them” and “facilitates the identification and access of materials for remote and underfunded libraries.”)
- “Helps to preserve books and give them new life,” particularly by making old and out-of-print books available to the general public.
- Benefits authors and publishers “by helping readers and researchers identify books” and by providing “links to sellers of the book.”
In his analysis of the fair use argument, Judge Chin begins by strongly defending the characterization of Google’s digitization project as a “transformative” use (a heavy factor in favor of fair use), and then applies each of the four tests for fair use to Google’s actions:
- Purpose and Character: Here Judge Chin refers back to his argument that “Google’s use of the copyrighted works is highly transformative,” in that it “transforms expressive text into a comprehensive word index”; he emphasizes that “the use of book text to facilitate search through the display of snippets is transformative.” In this case, he argues, “words in books are being used in a way they have not been used before.” He acknowledges that commercial use of copyrighted material generally weighs against a fair-use finding in this context, but points out that a) “Google does not sell the scans it has made”; b) “it does not sell the snippets that it displays”; and c) “it does not run ads on the About the Book pages that contain snippets.” In short, Google “does not engage in the direct commercialization of copyrighted works.” Judge Chin concludes that the first fair use factor “strongly favors a finding of fair use.”
- Nature of the Copyrighted Works: In considering this test, Judge Chin takes into account the fact that “the vast majority” (as much as 93%) “of the books in Google Books are non-fiction,” and therefore entitled to less protection against a fair use claim than creative, fictional works would be. Given that the books are also published and publicly available, he finds that the second test “favor(s) a finding of fair use.”
- Amount and Substantiality of Portion Used. The books in question were copied and digitized in their entirety, which would naturally undermine a fair use claim on the grounds of this test; however, it is also true that “Google limits the amount of text it displays in response to a search.” Despite that mitigating factor, Judge Chin concludes that, on balance, “the third factor weighs slightly against a finding of fair use.”
- Effect of Use upon Potential Market or Value. Here is where Judge Chin has the strongest words for the plaintiffs, who argued that “Google’s scans will serve as a ‘market replacement’ for books” and that users could game Google’s system in order to gain unpaid access to the entirety of a desired text. “Neither suggestion makes sense,” says Judge Chin. In fact, given the protections and limits Google has put into place, “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.” Judge Chin concludes that “the fourth factor weighs strongly in favor of a finding of fair use.”
So, to summarize Judge Chin’s findings on the four tests: the first and fourth strongly favor a fair use finding; the second somewhat favors a fair use finding, and the third “weighs slightly against” a fair use finding. It’s not a knockout, but Google wins on points.
A paragraph from Judge Chin’s closing comments is worth quoting in full:
In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.
Kenneth Crews, at the Columbia University Libraries Copyright Advisory Office, posted a response to Judge Chin’s decision on November 14 in which he ventured that “this ruling joins court decisions about HathiTrust and in electronic reserves [i.e., in the Georgia State case] in demonstrating that even extensive digitization can be within fair use where the social benefits are strong and the harm to rightsholders is constrained.”
That conclusion is hard to argue with.
The Authors Guild plans to appeal.