Altering The Search Characteristics Of Copyrighted Literature According To The Second Circuit Is Transformative Fair Use

October 29, 2015

The recent decision of Authors Guild v. Google was handed down by the United States Court of Appeals for the Second District on October 16th, 2015.  The nearly decade old case has several implications most notably to the world of literary copyright, but could have much larger implications on the intellectual property community as a whole.  The appeal questioned whether Google’s use of scanned copyrighted works was within the meaning of the Fair Use Doctrine.
On December 14th, 2005 Google publicly announced a plan to make printed material accessible to the world through what was then known as Google Print (today Google Books).  Cooperation by research libraries was originally limited to public domain literature, however, the goal of Google was to create a worldwide digital library and strengthen its search-engine market.  When public domain literature turned into the scanning and use of full-text copyrighted works by Google the Authors Guild and several individual writers sued based on copyright infringement.  That suit lead to a settlement agreement which was reached in October of 2008 in which Google agreed to pay $125 million to be split between writers, and for use in the Book Rights Registry (an organization that would track down and distribute fees to authors).  Under the agreement Google would be able to display out-of-print works to its users and would charge a licensing free for works still under copyright.  Moreover, the settlement required Google to provide portals in every public library and over 4,000 educational institutions.  But the agreement was declined by the district court stating that the program of digitizing books would be more properly made by Congress.
When the original copyright suit was brought there were no Kindles, iPads, e-readers, or smartphones to read on.  Now e-reading is mainstream culture.  In 2011, 11 percent of Americans read an ebook; in 2014, that number grew to 27 percent, while print reading fell from 71 percent to, 63 percent.
In the ruling the Court of Appeals upheld the ruling by the Southern District Court of New York in favor of Google, which means that writers cannot stop the full-text scanning and adding of their works to Google’s online library of over 20 million books.  In his ruling Judge Leval wrote that Google’s use amounted to a “transformative use.”  Transformative Use was originally pioneered by Judge Leval in a law review article Toward a Fair Use Standard
In his article Judge Leval Stated,  I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative.  The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.

A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test.

[I]n Justice Story’s words, it would merely “supersede the objects” of the original.  If, on the other hand, the secondary use adds value to the original — if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings — this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Moreover, in the Author Guild v. Google opinion Judge Leval expressed that the purpose of Google’s actions of copying the books is to make significant amounts of information about those books available, allowing researchers to identify books that contain terms of interest and the frequency of usage of the selected words.
In other words, the court ruled that full scale lifting of copyrighted materials was transformative because it was put through Google’s protected algorithms for its own use and what the court viewed as the betterment of society, even if the content of the work being copied was substantially untouched.  With this idea it appears that Judge Leval contradicts his earlier review idea that repackaging and republishing a work would not likely be transformative.
The Authors Guild website states, “We agree that Google Books is a good thing, but one for which authors should be compensated, like other search databases such as J-Stor, Westlaw, and Lexis/Nexis.”
While some believe that the issue is out of touch with today’s culture, other’s are worried about the greater implication on copyright infringement, especially in the form of artistic expression. The Authors Guild has already filed an appeal with the Supreme Court looking for more guidance on the issue as to whether transformative use equates to a search-engine’s ability to copy, in a whole-sale manner, text for their own use without changing the copyrighted work.  Both the Motion Picture Association of America and the music licensing organization ASCAP filed amicus briefs arguing for the Authors Guild  Yet, it remains a question of whether this general lifting of copyrighted text is a protected art and what the broader implications will be on not just the artistic community, but on the intellectual property community as a whole.