Second Circuit Rules That Google’s Book Scanning Project is Fair Use

Google Inc.’s practice of scanning millions of books and making the digital copies available for online searching is transformative fair use under U.S. copyright law, the Second Circuit has ruled.

Friday’s decision in Authors Guild v. Google Inc., No. 13-04829 (2nd Cir. Oct. 16, 2015) is a major victory for Google’s efforts to create an extensive, searchable digital library of books through its Google Books search engine. Under Google’s Library Project, libraries submit books from their collections to Google, which then scans those books, extracts machine-readable text, and creates an index of the text. The public can then search the index by words or phrases. The Google Books search engine provides searchers with a list of all books in the index that contain those terms and the number of times those terms appear in a particular book. Searchers are also provided with a limited number of “snippets” of surrounding text.

The Second Circuit’s ruling affirms the district court’s grant of summary judgment for Google in 2013. The lawsuit was brought by the authors of published books protected by copyright.

Important to the Second Circuit’s fair use analysis was the “transformative” nature of Google’s activities and the effect of those activities on the potential market for, or the value of, the authors’ books.

The court first determined that the making of a searchable, digital copy was transformative because it “augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests.” Slip Op. at 4. Likewise, Google’s snippet function was “designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests).” Id. at 23.

The court further held that Google’s activities did not harm the value of the copyrighted books because searchers were not being given access to “effectively competing” substitute works.

“Snippet view, at best and after a large commitment of manpower, produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book,” the court explained. “This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.” Id. at 35.