Transforming Works: The Second Circuit Rules That The Google Library Project Digitization Is A Transformative Fair Use In Authors Guild, v. Google Inc.

On October 16, 2015, the Second Circuit affirmed the district court's ruling in Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013), previously reported here, that Google's digitization of complete copyrighted works, without author permission, and the creation of excerpt "snippets," accessible to the public by contracting libraries for research, is a transformative fair use.

More than 10 years ago, Google embarked on its Library Project in cooperation with major international research libraries to digitize more than 2 million works in order to provide enhanced scholarly research capabilities. Although some of the works were in the public domain, many were still under copyright, and including orphan works. Plaintiff copyright holders, including individual author class representatives, brought a class action suit asserting that this unauthorized use of their works constituted direct and contributory copyright infringement. Google defended the Library Project (available to the public as the "Google Books" search engine) as a transformative fair use.

A U.S. copyright owner's enumerated rights under the Copyright Act to use and control its work are limited by the doctrine of "fair use," which permits what would otherwise constitute an infringing use, if the use is made for criticism, comment, news reporting, teaching, or scholarship and research. 17 U.S.C. § 107. Fair use is considered necessary to fulfill the mandate of copyright law to "promote the Progress of Science and useful Arts." U.S. Const. art. 1, § 8, cl. 8. However, what is precisely fair is dependent on consideration of (1) the purpose and character of the use; (2) the nature of the use; (3) the amount and substantiality of the portion of the use; and (4) the effect of the use on the potential market for the work.

As the Second Circuit explained in affirming the district court's decision, Google's use constitutes a transformative fair use because it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message." The snippets are transformative because they give the viewer a searching context that was not previously available, as the snippets are available to the public for word searches, text mining, and data mining for statistical information. This is a new research capability that was not contemplated by the copyright holder and provides a new benefit to the public.

Although the plaintiffs argued...