Authors Guild Expands On Importance Of Transformative Purpose Use To Fair Use Analysis

In an opinion by Judge Leval, the United States Court of Appeals for the Second Circuit has upheld Google's digitization program of full text copying of books. Expanding on its decision last year in Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), the court held that Google's program was highly transformative and unlikely to substitute for any of the original works and, thus, was a fair use under the Copyright Act.

Background

In HathiTrust, the Second Circuit held that it was fair use for research universities to digitize full copies of millions of works to enable users to determine the number of times a particular word appears or to provide full replacement copies of the work to persons with disabilities. In doing so, the court held that HathiTrust's text-searchable database is a "quintessentially transformative" use in that "it does something more than repackage or republish the original copyrighted work" by "add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning or message." Users do not see any of the work's actual text or images, and authors do not "write with the purpose of enabling text searches of their books." The court further explained, in rejecting the district court's analysis, that "a use does not become transformative by making an 'invaluable contribution to the progress of science and cultivation of the arts.'" "Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it."

Unlike the program at issue in HathiTrust, the Google Library Project involved more than just counting words. In agreements with several of the world's largest research libraries, Google created digital scans of over 20 million books that the libraries chose from their collections, extracted machine-readable text, and indexed the extracted text. The "vast majority" of the books Google digitized were non-fiction and "most" are out-of-print works. Google keeps the digitized books on its own servers and makes each book's information available to the submitting library, which agrees to use the digital copies only for non-infringing uses.

The Google Project enables public users to "enter search words or terms of their own choice, receiving in response a list of all books in the database in which those terms appear, as well as the number of times the term appears in each book." In addition, a "brief description" of each book is provided, together with "some rudimentary additional information, including a list of the words and terms that appear with most frequency in the book," and "sometimes" the response provides links to buy the book outline and identifies libraries where the book can be found. As the court noted, "this identifying information...