Since 2004, the Google Books project has scanned over 20 million books and has provided digital copies of the books to participating libraries while also creating a searchable database of books. The Google Books database returns relevant search results in an “About the Book” summary or in viewable “snippets” of portions of the book pages. Since 2005, however, the Google Books project has been the subject of a class action filed by The Authors Guild, the nation’s largest organization of published authors, charging Google with copyright infringement.

A settlement proposed by the parties was rejected by Judge Denny Chin of the U.S. District Court of the Southern District of New York (Judge Chin is now an appellate judge for the U.S. Court of Appeals for the Second Circuit) on the grounds that the settlement was unfair. After further litigation and unsuccessful settlement attempts, the case continued pertaining only to the issues of proper class certification and whether the Google Books project was protected by the fair use defense under Section 107 of the Copyright Act. Noting that resolution of the fair use defense could preclude the need to review the issue of class certification, the case was remanded to the district court and Judge Chin granted Google’s motion for summary judgment holding that the reproduction, distribution and display of the content of books without the prior authorization of rightsholders is fair use. Authors Guild, Inc. v. Google, Inc., Case No. 05 Civ. 8136, (SD NY, Nov. 14, 2013) (Chin, J., sitting by designation).

In his decision, Judge Chin reviewed the four fair use factors codified in § 107:

The Purpose and Character of the Use of the Copyrighted Work

Stating that the first factor “strongly favors a finding of fair use,” the court concluded that Google Books is “highly transformative” because it helps researchers, readers, librarians and others to locate books, and it has greatly contributed to substantive research by allowing “text mining” across millions of books. Furthermore, because Google Books is not a tool for reading full texts, the court noted that the technology does not “supersede or supplant” the original books. The court also equated the use of visible “snippets” of the books to that of “thumbnail images,” which have previously been deemed to be transformative uses of copyrighted works for facilitating searches.

The court was also quick to point out that fair use could be found despite Google Books being a commercial enterprise. In particular, the court explained that Google does not sell the scanned books or snippets and Google does not run advertisements on its “About the Book” pages.

The Nature of the Copyrighted Work

Because all of the books scanned into the Google Books project are published works that are already available to the public, and because the “vast majority” (approximately 93 percent of the books) of the scanned books are non-fiction works which are entitled to less copyright protection (as compared to fictional works), the court found that the second factor favors fair use.

The Amount and Substantiality of the Portion used in Relation to the Work as a Whole

Due to the fact that Google Books scans the full text of books, the third factor was the only factor the court found to weigh “slightly” against the fair use defense. Nevertheless, because Google limits the amount of text displayed in the search return “snippets,” and because the full reproduction of the books is essential to the function of Google Books, this factor did not defeat the fair use defense.

The Effect Upon the Potential Market for the Copyrighted Work

Finally, the court found that Google Books is not a “market replacement” for the underlying copyrighted works, and held that the fourth factor weighed “strongly in favor” of fair use. In particular, the court noted that “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.” The court decided that this was especially true since the Google Books “About the Book” pages provide links to booksellers so that users can purchase the books they locate via their search queries.

Overall, the court found that Google Books provides a significant public benefit without adversely impacting the rights of copyright holders, and granted Google’s motion for summary judgment.

Practice Note: It will be interesting to see if courts in other jurisdictions will consider Judge Chin’s decision authoritative in future cases, limited to class action certification issue presented by The Authors Guild, the named plaintiffs and the identified works.