In a November 14, 2013 decision, Judge Denny Chin (continuing a case in which he presided before joining the Second Circuit) granted summary judgment in favor of Google, Inc in the long-running case by The Authors Guild, Inc. based on the fair use defense to copyright infringement. As part of its Google Books program, Google "has scanned more than twenty million books," "has delivered digital copies to participating libraries, created an electronic database of books, and made text available for online searching through the use of 'snippets.'" Since many of the scanned books are still under copyright, The Authors Guild, and three named plaintiffs brought a class action copyright infringement action. The parties cross-moved for summary judgment on Google's fair use defense.At the outset, Judge Chin assumed that the plaintiffs had made out a prima facie case of infringement, and that the sole issue for decision "is whether Google's use of the copyrighted works is 'fair use' under the copyright laws." The defense, which the defendant has the burden of proving, is codified at 17 U.S.C. § 107, and requires the consideration of four non-exclusive factors: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (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 Court considered each of these factors in turn.
For the first factor, Judge Chin found Google's use "highly transformative" -- i.e., Google "digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative." The Court also ruled that "Google Books is . . . transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Works in books are being used in a way the have not been used before. Google books has created something new in the use of book text -- the frequency of words and trends in their usage provide substantive information." Judge Chin considered that Google is a for-profit venture but concluded that "in weighing all the factors, even assuming Google's principal motivation is profit, the fact is that Google Books serves several important educational purposes," and so found that the first factor weighs strongly in Google's favor.
The Court then summarily addressed the remaining factors, writing that the largely non-fictional, published nature of most of the works favored a finding of fair use; that Goggle copies the works at issue in full but since it only displays "snippets" of the works, the third factor weighs only "slightly" against a finding of fair use; and that the Google program would not diminish the market for the copied works but on the contrary, it should expand the market for the works by greatly increasing their visibility and promoting online sales of the works, so that the fourth factor weighs "strongly" in favor of fair use. The Court weighed these factors along with its conclusion that "Google Books provides significant public benefits," and granted summary judgment in favor of Google on the fair use defense.
