“The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works…Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”- Circuit Judge Pierre Leval in Authors Guild v. Google, Inc. (Page 13).
These words of Judge Leval resonate and once again reaffirm that public interest trumps intellectual property law. In an appeal from the U.S. District Court for the Southern District of New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit upheld Google Books Library Project’s legal status. The litigation arose in the aftermath of Google making digital copies of tens of millions of books (without authors consent) submitted to it by world’s major research libraries with the aim of making snippet view of these books available to Internet users for search.
The authors in dispute contended that Google was engaging in “massive copyright infringement” by it’s display of search results to book-seeking users.
Google’s book search functionality is described by the Court as, “ Members of the public accessing the Google books website could enter search words or terms of their choice, receiving in turn, a list of all books in the database in which most of those terms appear alongwith the number of times.” (Authors Guild v. Google, Inc., Page 6).
Fair Use Analysis
As noted by Judge Leval, “this copyright dispute tested the boundaries of fair use“. Hence, for the sake of brevity, I will straight away dive into the the primary issue – ” Could Google rightfully take recourse to the fair use exception under 17 U.S.C. §107? “
The Court answered in the affirmative. Google’s unauthorized digitization of copyright-protected works for creating a search functionality and display of snippets from the works were non-infringing fair uses on account of following reasons –
(i) The purpose of the copying was highly transformative –
Google’s act of making digital copies of books facilitating a search function was transformative as it had the effect of augmenting public knowledge by making available limited information about the author’s books. Further, Google’s search functionality was not a substantial substitute for author’s copyright protected works (For instance, an intended reader of Jim Bouton’s – Ball Four will in all probability not read the book on Google’s online library as only limited snippets from the text will be available for public viewing. Hence, the reader will have to explore other alternatives for procuring a copy).
(ii) The public display of the text was limited –
The Court concluded that since a snippet view never revealed more than one snippet per page in response to repeated searches for the same term, it was difficult and almost impossible for a searcher/ reader to gain access to an extended and continuous discussion of the term. However, the Court also expressed that if the snippet view could be used to reveal a coherent block of text amounting to 16 % of the total text then that would raise a very different question beyond the scope of the present dispute.
Suffice is it to say that, since the snippet view (in it’s present form) did not give continuous and coherent view of a large portion of text, hence was within the confines of fair-use.
(iii) The revelations (the portion of the text from the book that was made visible) were not significant market substitute for the protected part of the works in question –
The Court concluded that the snippet view functionality as presently structured by Google substantially protected against its serving as an effective competing substitute for author’s copyrighted works. Further, no snippet view was provided for books such as dictionaries and cook books – for which even a small percentage of view would fulfill a searcher’s needs.
The Court also stressed upon that the manner and order of the text as revealed to searchers was as important as the percentage of copyrighted text revealed. Hence, even if the search function of Google’s online library revealed 100% of the text of the copyrighted works, there would be no substitutive value if the words were revealed in an alphabetical order, or in an order otherwise not followed in the original copyrighted work.
(iv) No denial of fair use could be found on the mere nature of Google’s commercial nature and it’s profit motivation –
Even though Google does not receive any direct revenues from its operation of the Google Books function, the authors (plaintiffs) contended that Google was motivated by profit and sought to use it’s dominance of book search to fortify its overall dominance on the Internet search market. Thus, implying that Google indirectly reaped profits from the Google Books function.
The Court rejected this argument. Based upon precedent, (U.S. Supreme Court’s decision in Cambell v. Acuff- Rose Music Inc. ) it held that Google’s profit motivation (if any) should not deny it fair use over its highly transformative book search facility, given the absence of significant substitutive competition.
(v) Google’s act of making the digitized copies of the books available to the libraries that provided the book, on the understanding that they will be used within the limits of copyright law did not amount to infringement –
The Court rejected plaintiff’s argument that Google’s contract with participant libraries for making digitized copies available to the latter for non-infringing fair use purposes amounted to infringement. The Court held that the present arrangement was not any different had the participant libraries made their own copies for fair use digital searches.
Further, the Court observed that based upon present record, the possibility that the participant libraries may misuse the digital copies was mere speculation. Also, there was no evidence on record to hold Google liable for contributory infringement.
The Way Forward/ Conclusion
I can only warmly welcome Judge Leval’s well reasoned and persuasive decision which once again reaffirms the public interest function of copyright law. Though not a ground breaking decision as far as the interpretation of contours of fair-use goes, my now somewhat copyright sharpened eyes can visualise following anomalies –
(a) “But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect ‘upon the potential market for or value of the copyrighted work” -Page 35 of Authors Guild v. Google, Inc.
This excerpt from the decision raises a question which has been left unanswered by the Court – “how should significant or meaningful effect upon the potential market be quantified?” – would it be loss of few sales in the primary market or would it even extend to the market for derivative rights?
While I understand that addressing this question would have been judicial overreach, it would have benefited had the Court made a cursory remark based on the facts of the present case.
(b) ” The contract 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 their digital copies to the public at large.” – Page 44 of Authors Guild v. Google, Inc.
The delay in publishing this post (even though I had read the decision on the day it was penned down) has primarily been due to my struggle with the quoted excerpt of the decision. During one of the brainstorming sessions, my otherwise highly astute IP lawyer friend raised a pertinent question (stemming from a strong patent focus), – ” How can a searcher/reader access full scanned copies of the book?”.
Two alternatives come to my mind – either by entering into a license agreement with the participating libraries (how will the specifics of the license play out is something I am still struggling with) or with Google (however if a license is entered between the searcher and Google without providing for a royalty to the author, Google’s fair use argument for it’s Library Project will fall at it’s face). Some have even suggested that the latter alternative might not even be an option since Google never actually sought the consent of authors.
Hence, these are precisely the sort of questions that have been left unanswered by the Second Circuit, leaving much to anticipation.
( I hope to get a better insight into these issues from none other than Professor Brauneis and Professor Oman , who I intend to meet on October 22nd at the GW AIPLA Networking Reception. This also serves as a gentle reminder to all G.W. IP lawyers in and around Washington D.C. – you may not want to miss this!).
Being a public spirited person and as an ardent supporter of the open access movement (keeping aside the copyright lawyer in me at bay), I raise the utilitarian value of the Google Books Library Project – if after expending massive resources on digitizing rare books, searchers cannot access the full digitized(scanned) copies without entering into esoteric license agreements (capable of being understood only by lawyers) then the limited purpose served by the Google Books Library Project is unfathomable to me.
Irrespective, the decision is a big victory for bibliophiles – who should rejoice the decision keeping the esoteric nuances of the case much to the raking of copyright lawyers. The period of rejoice may be short-lived – considering that Authors Guild is likely to appeal the decision to the Supreme Court.
As a bibliophile myself, I can only pray that the Supreme Court takes note of the public utility function of the Google Books Library Project, without getting throttled by a restrictive fair-use regime.