A Snippet of Fairness

Alyshea Low and Joshua Teoh explain the Case on Google Books and the Google Library Project.
On 18 April 2016, the U.S. Supreme Court issued an order declining to review a decision made by the United States Court of Appeals for the Second Circuit (“Appeals Court”) under Docket No.13-4829-cv in respect of a copyright dispute between a coalition of book authors led by the Authors Guild (“Plaintiffs”) and Google, Inc. (“Google”) over Google’s initiatives in the Google Books and Google Library Project.
An Introduction to Google Books and the Google Library Project
In 2004, Google started building a digital search engine for books (“Google Books”) by collecting and scanning books gathered from libraries, through its Google Library Project (“Library Project”). The Library Project involved bilateral agreements between Google and participating libraries such as the New York Public Library, the Library of Congress, and a number of university libraries.
Pursuant to the agreement with Google, participating libraries would select books from their collections to submit to Google for inclusion in the Library Project. Google would make a digital copy of each book by scanning it. It then extracts a machine-readable text and creates an index of the machine-readable text of each book. Google retains the original scanned image of each book and allows the libraries that submitted a book to download and retain a digital copy. The agreement between Google and each of the participating libraries commits the library to use its digital copy only in a manner consistent with copyright law, and to take precautions to prevent dissemination of its digital copies to the public at large.
By relying on the information from the Library Project, users of Google Books may input a desired search term and Google Books will show exactly where the searched term appears in the text, as well as the number of times the term appears. In doing so, the “snippet” tool of Google Books will reveal one-eighth of a page containing the searched term and up to a maximum of three snippets containing the searched term. Google does not allow a user to increase the number of snippets through the same search term and makes permanently unavailable for snippet view one snippet on each page and one complete page out of every ten through a process it calls “blacklisting”.
Procedural History
According to the Plaintiffs, Google had scanned more than 20 million books, of which about 4 million were still under copyright. As Google did not obtain permission from the copyright holders for the use of their copyrighted works, the Plaintiffs commenced a class action on 20 September 2005 on behalf of similarly affected rights-owning authors. The Plaintiffs alleged, inter alia, that Google committed copyright infringement by scanning books that were still in copyright and making them available for search without permission of the copyright holders.
After several years of negotiations, the parties reached a proposed settlement in October 2008 that would have resolved the claims on a class-wide basis. As this was a class action suit, the settlement required the approval of the presiding judge in the U.S. District Court in New York.
The proposed settlement included terms such as payment by Google to the owners of the books scanned without permission and payment to fund the Book Rights Registry, an organisation that would track down and distribute fees to authors. Google would be allowed to display out-of-print books to users and charge licensing fees for copyrighted works and be required to provide portals in every public library and more than 4,000 colleges and universities in the United States, allowing widespread access.
However, on 22 March 2011, the District Court rejected the proposed settlement as being unfair to the class members who relied on the named Plaintiffs to represent their interests, thus putting the parties back to action in court.
Decision of the District Court of New York
On 14 November 2013, the District Court of New York granted Google’s motion for summary judgment and dismissed the suit against Google, holding that Google’s use of the copyrighted works qualified as “fair use” and is protected by the U.S. Copyright Act of 1976 (“USCA”).
The Plaintiffs appealed and the case went before the Appeals Court which also found in Google’s favour on 16 October 2015.
According to section 107 of the USCA, in determining whether a copying of copyrighted work qualifies as fair use, the factors to be considered include: (1) the purpose and character of the use, (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 use of copyrighted material may be considered fair use if it is “transformative” and does not impair the potential value or market for the copyrighted work. A transformative use is one that communicates something new and different from the original work or expands its utility. It differs from derivative works in that the latter involves transformations in the nature of changes of form to the original work.
The Appeals Court found that the search function and the snippet view of Google Books would serve a different function from the original work and would thus fall within the meaning of transformative purpose.
The snippet feature constructed by Google offers a limited viewing of the original work in a manner that substantially protects against Google’s digitized copy from being an effective competing substitute of the original work. At most, the snippet view would only offer up to 16% of the original work and its discontinuous, fragmentary and scattered nature is of little substitutive value. Google’s division of the page into tiny snippets is designed to show the user just enough contexts surrounding the searched term to help evaluate whether the book falls within his scope of interest. This enables the user to identify books of interest without revealing so much as to threaten the author’s copyright interests.
Similarly, the Appeals Court also found that the copying of the entire book by Google was reasonably necessary to achieve the transformative purpose as “the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn”. The entire book copying was necessary because the search function would not otherwise be able to advise users reliably as to the number of times, if any, the searched term appears in a book. The Appeals Court noted that whilst Google makes an unauthorised digital copy of the entire book, the digital copy is not revealed to the public.
The Appeals Court also noted that the nature of the copyrighted work “has rarely played a significant role in the determination of a fair use dispute”. While courts have suggested that the use of factual works may be more favoured than fictional ones, the distinction between factual and fictional works is not dispositive in a fair use determination. In addition, Google does not provide snippet view for types of books, such as dictionaries, for which viewing a small segment is likely to satisfy the searcher’s need.
The Appeals Court rejected the argument that Google cannot rely on the defence of fair use because of its commercial nature and overall profit motivation and held that in absence of significant substitutive competition with the original, commercial motivation should not outweigh a convincing transformative purpose.
The Appeals Court, in the grounds, stated that “while authors are undoubtedly important beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship”.
After carefully examining and scrutinising the doctrine of fair use, the Appeals Court found that Google had safeguarded from public view the digitized copies of the original works and instead, allowed the public to view a transformative work which provided limited information through the search function and snippet view. Thus, the Appeals Court concluded that the digitizing of copyright-protected works in the manner carried out by Google amounted to non-infringing fair use.
The decision by the Supreme Court to decline a review of the Appeals Court’s decision means that the latter’s decision is final. It marks the end of a decade-long dispute which, according to Judge Pierre N. Leval who wrote the judgment of the Appeals Court, “tests the boundaries of fair use” under the USCA. The decision also authoritatively resolves the question as to whether Google Books and the Library Project infringe the rights of copyright owners whose works are digitized.