This month marked the end to a decade-long copyright dispute between the Authors Guild and Google. The dispute started in 2005, when the Authors Guild (a writers’ advocacy organisation) alleged that Google was committing mass copyright infringement by scanning book collections as part of the Google Books Library Project.
A US District Court in 2013, and a US Court of Appeals in 2015, held that Google’s actions amounted to “fair use”. Undeterred, the Authors Guild filed a petition for certiorari (a writ seeking judicial review). The US Supreme Court denied that petition on Monday, 18 April 2016.
The result is that Google is free to continue with its Library Project.
While the case primarily involves the definition of “fair use” under section 107 of the US Copyright Code, its significance may be much broader than that. Google has praised the decision as being in the best interest of the public and authors. In contrast, the Authors Guild has called the US Courts “blinded by the public benefit arguments”, claiming that the outcome marks the redistribution of wealth from the creative sector to the tech sector. The Authors Guild has called for Congress to step in.
The US Courts’ decisions also do not determine the position under other national copyright laws, including New Zealand’s.
A brief history: Authors Guild v. Google
In 2004, Google started the Google Books Library Project, an audacious effort to scan and make searchable the book collections of several major research libraries. Google’s aim was to digitise books and bibliographic information, to provide copies of the digitised books to participating libraries which held the hard copies, and to provide powerful online search tools to the public. Specifically, Google allows internet users to search for content within the books, and provides free access to randomised snippets of the books.
However, Google did not seek or obtain authorisation from any authors or publishers, and in September 2005, a group led by the Authors Guild initiated a major class-action lawsuit against Google for copyright infringement.
In 2008, the parties agreed in principle to terms that would authorise Google’s digitisation and monetise the Library Project to the benefit of copyright owners. However, the proposed settlement was rejected by the District Court has not being fair, adequate and reasonable to various members of the class-actions.
Meanwhile, Google continued the Library Project, and by the end of 2008, had reportedly digitised over 7 million books. By 2015, that number had increased to almost 20 million.
In November 2013, the District Court dismissed the suit against Google, holding that Google's use of the works qualified as “fair use”. The Authors Guild appealed and the case went before the Second Circuit Court of Appeals, which in October 2015 also found in Google’s favour.
The Second Circuit’s decision stands, with the US Supreme Court this week denying the Authors Guild’s petition for review.
The US Court of Appeals decision
The Second Circuit’s decision opens with an acknowledgement that this dispute “tests the boundaries of fair use”. Those boundaries are defined in US law by section 107 of the US Copyright Code.
Considered in light of the facts, this is how the Second Circuit defined the boundaries of fair use:
1. The purpose and nature of Google’s use
The books are not merely digitised or derivative of the copyright works; they are provided in the context of a search engine which provides many additional benefits over a mere digitisation. Google’s use of the copyright works is therefore highly transformative. It “communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.” If the “ultimate goal of copyright is to expand public knowledge and understanding”, then Google’s Library Project is in line with that goal.
Google’s search tool only displays small randomised “snippets” of the relevant works. Google does not provide a 1:1 substitute for the original works. Even though Google’s use is commercial, that does not automatically disqualify it from the fair use defence.
2. The nature of the copyrighted work
Google’s use “transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute”.
3. The amount and substantiality of the portion of use in relation to the copyrighted work as a whole
This is a particularly interesting factor in this case because Google copied the books in their entirety. Typically, such substantive copying of the whole weighs heavily against a finding of “fair use”. However, Google did not provide the books in their entirety as a substitute for the original works, and instead only provided very small snippets (protected by security measures to ensure that the entire books could not be obtained).
Further, the Second Circuit considered the purpose of Google’s copying of the books in their entirety, and decided that had Google copied anything less, this would have defeated the purpose of the Library Project. In creating a searchable database, entire books had to be digitised.
4. The effect of the use upon the potential market for or value of the copyrighted work
Again, Google’s Library Project does not serve as a substitute for the original works. While there may be some instances in which the snippet view provides a searcher with all the information s/he needs to know (and therefore provides an alternative to purchasing the book), that type of information will most often be factual in nature and not subject to copyright protection anyway.
The highly transformative nature of the Library Project will have no significant effect on the potential market value of the copyrighted works. (The Authors Guild criticises this part of the decision, saying that the Court failed to appreciate the full commercial and long-term effects this decision will have on authors.)
In summary, the Second Circuit held that Google’s digitisation serves a transformative purpose that falls within the scope of “fair use”. Google’s Library Project is a valuable research tool and enlarges public knowledge without providing a substitute for the plaintiff’s copyright works.
The broader picture
The Second Circuit decision highlights the outer limits of fair use under United States law, and reminds us that the “ultimate, primary intended beneficiary” of copyright law is the public. However, that is not to say the Court will always reward public benefit over private copyrights. The facts of this case are undoubtedly unusual and there may never be another situation that reaches the same level of “public benefit” as the Google Books Library Project.
Assuming that Google is undertaking the scanning and electronic storage of books only in the USA, that aspect of the Library Project appears to be safe from further attack. That raises an interesting further question: could access to the Google Books Library Project from anywhere outside of the US potentially engage the jurisdiction of a non-US Court? Because copyrights are territorial, Google’s publication to the public in other territories may in fact be open to challenge in each different jurisdiction. For example, would access to the Library Project by New Zealand users engage New Zealand law, and if so, would Google be guilty of copyright infringement in New Zealand?
In New Zealand and Australia, for example, copyright may be infringed by issuing copies of a copyright work to the public, or by communicating the work to the public. Potentially, serving search results including “snippets” of books to a New Zealand or Australian user may infringe if those snippets amount to a substantial part of the book in question. There is no general defence of “fair use” in New Zealand or Australia. Instead, our “fair dealing” defences are categorised narrowly – for example “criticism, review, and news reporting”, and “research and private study” (as well as “parody or satire” in Australia). For this reason alone, it is unlikely that a New Zealand or Australian court could realistically reach the same result as the Second Circuit, even if it considered the same factors. The argument would instead be likely to revolve around the issue of substantiality. However, the practical likelihood of such an action being initiated appears slim.
For now, Google’s Library Project will continue to grow, no doubt under the close scrutiny of interested parties such as the Authors Guild.
 Authors Guild, et al. v. Google, Inc., 15-849
 The Authors Guild, Inc., & Ors v Google Inc., No. 1:05-cv-08136 (US District Court, S.D. New York)
 Authors Guild v. Google, Inc., No. 13-4829 (2nd Cir. 2015)