Google Books’ Fair, Transformative Use

“Transformative use” is not about a war between giant robots that can transform into vehicles and other objects, although there are similarities between the animated television series “The Transformers” and the war that has been taking place for more than a decade between Google and the publishing industry. Internet giant Google has been sued by publishing giants – in 2005, by the American Association of Publishers and, more recently, by the Authors Guild.

Google’s Library Project, which began in 2004, involves agreements between Google and a number of the world’s major research libraries under which participating libraries selected books from their collections to submit to Google. Google has scanned and indexed more than 20 million books, including both copyrighted works and works in the public domain. Members of the public who access the Google Books website can enter search terms and retrieve a list of all books in the database in which those terms appear. The search function can provide links to buy the book online and/or identifies libraries where the book can be found and it also allows the user a limited viewing of text.

On October 16, 2015 the Second Circuit Court of Appeals affirmed a lower court’s 2013 ruling that Google Books search – which allows a user to search for individual works and then view a few paragraphs of the resulting book – is a “highly transformative” use of authors’ books and, therefore, is a “fair use.” Courts have long recognized that giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge. “Courts thus developed the doctrine, eventually named fair use, which permits unauthorized copying in some circumstances, so as to further copyrights very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” Although well-established in the common-law development of copyright, fair use was not codified until the adoption of §107 of the Copyright Act of 1976. 17 U.S.C. §§ 101 et seq.

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The first factor, the ‘purpose and character’ of this secondary use focuses on whether the new work “adds something new, with a further purpose. …[I]t asks, in other words, whether and to what extent the new work is “transformative.”  Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-579. In the words of the Second Circuit, “copying from an original for the purpose of criticism or commentary on the original or provision of information about it, tends most clearly to satisfy Campbell’s notion of the “transformative” purpose involved in the analysis of  [the first factor].” After analyzing the first factor, the court ruled “We have no difficulty concluding that Google’s making of a digital copy of Plaintiffs’ books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell.”

To read commentary about the case, see: Why a US court agrees Google Books is a ‘card catalog for the digital age’.



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