Goliath Defeats David with Fair Use: The Second Circuit’s Recent Decision in The Authors Guild v. Google, Inc.

October 22, 2015

Despite Google’s humble beginnings in a California garage, Google has become an international behemoth that is valued at approximately $400 billion. In addition to its Internet search engine, Google has expanded to now offer a variety of additional Internet services (i.e. maps, email, social media), phones, as well as innovations in an assortment of other venues.
In September 2004, Google, with the assistance of several libraries, sought an additional undertaking through the Google Library Project—a digital accumulation of books that would allow users to search a “virtual card catalog.” Users may view and download the entire book if the material does not have any copyright protection. However if the material has copyright protection, the user may only view snippets of the text and links to where he or she could purchase or borrow the respective book.
In a consolidated lawsuit within the Southern District of New York, the Authors Guild and publishers headed by McGraw-Hill Cos. Inc. alleged that Google was committing copyright infringement, since it did not seek the permission of the authors whose books Google sought to include in the Google Library Project. However, Google asserted in its Answer that no copyright infringement occurred due to the defense of fair use.
Congress created the concept of fair use as an exception to copyright infringement. According to 17 U.S.C. § 107, an individual or entity may use copyrighted material for purposes, including but not limited to, research, comment, and criticism, without infringing upon the rights of the owner of the copyrighted material. This exception, however, is dependent upon the respective court’s analysis of the purpose and character of the use, the nature of the copyrighted material, the proportion of copyrighted material used, and the effect of the use upon the copyrighted material.
After several years of litigation, Judge Chin held that the Google Library Project did not commit copyright infringement through the reproduction of copyrighted materials. Judge Chin noted that the Google Library Project satisfied the fair use factor analysis and it offered “significant public benefits”; specifically it “helped preserve books, gave underserved populations access to books, and aided scholars to analyze large amounts of data through the use of ‘text mining’ and ‘data mining.’” Judge Chin further noted that it would be nearly impossible for a user to read an entire copyrighted material through the snippets provided by the Google Library Project.
Thus the disgruntled Authors Guild and fellow plaintiffs appealed Judge Chin’s decision within the Second Circuit. However to the demise of the Authors Guild, the Second Circuit affirmed Judge Chin’s holding that the Google Library Project did not infringe upon the copyrights of the more than 2.7 million digital book reproductions. The Second Circuit in its opinion found that the Google Library Project is “a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.” Furthermore, the Second Circuit expressed that Google’s profit motive does not justify denial of fair use especially when juxtaposed to the significant public benefits offered through the Google Library Project.

The Second Circuit’s decision has a broad implication upon copyright law: it invalidates the contention that a commercial entity cannot assert the defense of fair use.

After a decade worth of litigation, it is not surprising that those opposing the Google Library Project are disappointed with the Second Circuit ruling. The executive director of the Authors Guild in New York, Mary Rasenberger, stated, “America owes its thriving literary culture to copyright protection. We are very disheartened that the court was unable to understand the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, our literary heritage.” Furthermore, another representative informed the New York Times that the Authors Guild currently intends to appeal to the Supreme Court of the United States. However the law community and specifically copyright experts, such as law professor James Grimmelmann, believe that precedent does not provide a high probability of success for the Authors Guild in an appeal to the Supreme Court of the United States.
Therefore until the Authors Guild appeals the Second Circuit’s holding, the Google Library Project may continue to be developed and Google’s ever-expanding regime will continue to overshadow any copyright owner who crosses its path.