All’s fair in love and copyright

In my last article I addressed U.S. copyright fair use analysis in Associated Press (AP) v. Meltwater. A federal district court found Meltwater liable for copyright infringement in part because (i) it copied exact excerpts from AP’s documents (ii) for which other media related businesses paid AP a licensing fee. However, in Authors’ Guild et al v. Google, Inc. another court found Google established a valid fair use although Google copied entire books word for word without permission from or compensation to the authors.

In dispute was Google’s Library Project, and for which Google scanned twenty million fiction and non-fiction volumes verbatim and in their entity. Participating libraries can download digital copies of scanned books if the hard copy of the book originated from a particular library source. Furthermore, members of the public could search these scanned volumes by using Google’s “snippets” of original text from each book. However, (i) Google does not allow each page of a volume to be entirely available by snippets and (ii) ten percent of the pages of each book are unavailable for search.

Not surprisingly, authors of scanned volumes still under U.S. copyright filed an infringement lawsuit against Google. Also not surprisingly, Google’s defense has consistently been that Google’s scanning of these works in their entirety is fair use. Fair use is a defense to copyright infringement under the U.S. copyright statute, and so the federal district court judge addressed fair use criteria to resolve whether Google had improperly copied these books. He first concluded that the character and purpose of the scanned volumes was transformative because (i) of the comprehensive word index Google created from the scanned volumes and (ii) the books were physically changed from paper to electronic versions for research purposes.

The judge next reviewed whether Google copied these particular books for commercial purposes. He concluded that Google’s for profit business status was not determinative, because Google’s scanning benefited the public and libraries whose books were scanned. He also concluded that Google’s scanning was not commercial because Google did not (i) sell book snippets or (ii) otherwise display ads for sale of Google’s online versions of these particular books. The court then held that the nature of the works, which were primarily non-fiction, weighed in favor of Google because (i) non-fictional book are more vulnerable to a defense of fair use than fiction and (ii) the books were previously published and therefore already available to the public.

The court then addressed the amount and substantial nature of the works that were scanned by Google. The court acknowledged that Google scanned the full text of all twenty million books verbatim. However, the court discounted this fact because Google limits the amount of text displayed and otherwise accessible during a search.

Finally the court addressed the effect of Google’s scanning on the potential market and value of the authors’ works. The court found in favor of Google, because few persons would invest time and energy to accumulate sufficient snippets to create an entire book. He also observed that without certain pages and snippets being accessible, searches would improve book sales through links to Google’s research site. Nevertheless, I predict in any appeal of this decision that the Authors’ Guild will contend that (i) even research engines that benefit the public (ii) nevertheless must compensate persons whose works provide the benefit.
© 2013 Adrienne B. Naumann
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