Google, the often-verbed champion of the search engine, faced a lawsuit from the Author’s Guild in 2013 over Google Books’s “Library Project.” Since 2004, Google has worked with several libraries to create something of an online card catalog that, as Google proclaims, aims to make finding relevant books easier for those looking for them – “specifically, books they wouldn’t find any other way such as those that are out of print.” Naturally, this ain’t grandma’s old card catalog. No, this card catalog identifies book stores and libraries that currently possess the book. It also offers certain portions of the book’s actual text – anything from a snippet of the book, to a few full pages, to even the full book (if the book is out of copyright, of course). The copied text is the issue, and the Author’s Guild initiated the underlying suit back in 2005.
The Author’s Guild claims that Google has committed “massive copyright infringement.” While Google only offers snippets of each book in its database unless the copyright owner or publisher gives consent, Google still copies, or “indexes,” the entire book. Since the project began, Google has scanned more than 20 million books. Where the absolute statutory minimum for copyright infringement is $200 per infringed work, Google faced a potential loss of billions of dollars. Luckily, Google won, and the decision was affirmed on October 16th by the Second Circuit.
Judge Pierre Leval, a well-known authority on copyright law, found that Google’s use of the works was “transformative,” or a use that has a different purpose from the original use. Transformative use justifies the principle of “fair use.” Judge Leval wrote that “the would-be fair user of another’s work must have justification for the taking.” Google contended that their project stems from the desire to provide information to the public that would otherwise be unavailable, or at least much harder to find.
Still, the Author’s Guild thought that it was unnecessary for Google to copy works in their entirety. Generally, fair use has a negative relationship with the amount of a work copied. That is, the larger the portion of a work copied, the less likelihood that it will be judged as “fair.” However, Google’s use was fair, again, because of the mission that the Library Project seeks to achieve. Judge Leval determined that copying the entire book was “literally necessary” to achieve the purpose that the Project seeks to achieve. Leval wrote, “If Google copied less than the totality of the originals, its search function could not advise searchers reliably whether their searched term appears in a book (or how many times).” Additionally, since the libraries that cooperate with Google would be completely justified in copying their catalogs themselves, the court found no harm, and in fact a greater good, in allowing the information giant to take the reigns of the copy horse.
Several people are touting this decision as a major win for fair use. Not included among those people, presumably, is the Author’s Guild. What do you think?
By Brian Unger
