Copyright law protects “original works of authorship,” giving a copyright owner the exclusive right to publish, distribute, exhibit, reproduce, and otherwise exploit these works. 17 U.S.C. § 102(a). The Fair Use doctrine allows the use of a copyrighted work by others, without the copyright owner’s permission, under certain circumstances. A long-running dispute involving the “Google Books” project, which involves the digitization of thousands of books for online searches, alleged infringement of the authors’ copyrights. In late 2015, a federal appellate court affirmed a lower court order dismissing the case on Fair Use grounds. Authors Guild v. Google, 804 F.3d 202 (2d Cir. 2015). The U.S. Supreme Court denied the plaintiff’s petition for certiorari in April 2016.
Federal copyright law allows several exceptions to copyright owners’ exclusive rights to copyrighted works. Under one exception, “libraries and archives” may reproduce copyrighted works if they do not do so for commercial benefit, they make the copies available to the public, and they include a notice of copyright with the copy. 17 U.S.C. § 108. At first glance, it might seem like this exception should apply to Google Books, but court decisions in the case focused on Fair Use.
Under the Fair Use doctrine, the use of a copyrighted work is not infringing if its purpose involves “criticism, comment, news reporting, teaching…, scholarship, or research.” 17 U.S.C. § 107. This is not an exhaustive list of permissible uses, and court decisions have identified multiple uses that fall under Fair Use. Even the commercial use of copyrighted works can be covered by Fair Use in certain situations. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
In 2004, Google started the Google Books project, in which the company enters into agreements with libraries to digitize some or all of their collections. According to the appellate court’s opinion, Google has digitized and indexed over 20 million books since 2004. Most of the books are nonfiction and out-of-print. The collection includes both copyrighted works and works in the public domain. A Google Books search engine gives users access to limited sections of books matching their search terms. Google has stated that the information provided through Google Books “would otherwise not be obtainable in lifetimes of searching.” Authors Guild, 804 F.3d at 209.
Several individual authors and an organization representing published authors filed a putative class action against Google for copyright infringement in 2005. After years of litigation and settlement negotiations, the district court granted Google’s motion for summary judgment in 2013. It found that the uses involved in Google Books constituted Fair Use. 954 F.Supp.2d 282 (S.D.N.Y. 2013).
On appeal, the Second Circuit reviewed the types of use permitted by the Fair Use doctrine. A key factor in Fair Use analysis is whether the use is “transformative” rather than “derivative.” A “transformative” work is one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579. The court found that, by allowing users to search the entire contents of millions of books but only allowing them to access snippets that fit their search terms, Google had created a transformative work under the Fair Use doctrine.
For nearly 40 years, intellectual property attorney James G. Schwartz has represented Bay Area businesses and business owners in a wide range of litigation and transactional matters. Contact us online or at (925) 463-1073 today to schedule an initial confidential consultation with an experienced and knowledgeable business attorney.
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