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Registro: 1
Título:
Google Books is transformative fair use, Second Circuit rules.
Autores:
Leung, Peter
Fuente:
Managing Intellectual Property. 11/2/2015, p18-18. 1p.

Article

*Actions & defenses (Law)

Fair use (Copyright) -- United States
Intellectual property infringement -- Lawsuits & claims
Judgments (Law)
United States. Circuit Court (2nd Circuit)

Google Books (Web resource)

The article discusses the ruling of the Second Circuit court that Google Books' feature
which allows scanning and indexing of book is a transformative use. The court further
states that it renders public benefit and is of fair use. The court rejected the argument
that Google infringed the right of the plaintiffs to apply search and snippet views to their
own works.
 1386
ISSN:
0960-5002
Número de acceso:
110655718
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Base de datos:
Business Source Complete

Google Books is transformative fair use, Second Circuit rules

In an unanimous decision, the Second Circuit ruled that Google Books' scanning and indexing
of books is a transformative use that renders a public benefit, leading to a finding of fair use

The decision handed down today is the latest development in a decade-long saga that, as the
Second Circuit noted in its opinion, tests the boundaries of fair use. The Court found that all four
statutory factors favoured finding fair use, in large part because of the highly transformative
nature of Google Books and the low risk that it would act as a market substitute for the original
works. The Court also rejected the rest of the plaintiffs' arguments, including that Google
infringed their exclusive right to apply search and snippet views to their own works and that
Google contributed to infringement by libraries participating in the programme.

The Authors Guild in a statement slammed the decision as a "reductive understanding of fair
use" and said it will appeal to the Supreme Court.

Judges Leval, Cabranes and Parker heard the case, with Leval writing the opinion. Jenner and
Block argued for the plaintiffs while WilmerHale represented Google.

A lifetime in internet years

In 2004, Google started to scan and index books as part of its Google Books programme.
Participating libraries submitted the books without the permission or participation from the
plaintiffs. Google made the books searchable to its users and provided snippets of the books
available as part of the search results. In addition, each library was able to download whole
digital versions of the books that it had submitted to Google, subject to an agreement that the
library would only use the digital versions in non-infringing ways.

The Authors Guild, which represents the rights holders of many of the scanned books, sued
Google in the Southern District of New York, seeking damages as well as injunctive and
declaratory relief. The trial court granted summary judgment in Google's favour, finding that
Google Books constituted fair use that provides "significant public benefits" and "enhances book
sales to the benefit of copyright holders". The plaintiffs appealed to the Second Circuit.
The fair use factors In finding that Google's use constituted fair use, the Second Circuit
analysed both the fair use factors as laid out in 17 USC 107 and the Supreme Court's decision
in Campbell v Acuff-Rose. Section 107 lists four factors to consider when determining whether a
copy constitutes fair use. Campbell emphasised that Section 107 is not a bright line test nor a
limit to the factors that should be considered.

The four Section 107 factors are: 1) the character of the use, including whether it is for
commercial or educational purposes; 2) the nature of the copyrighted work; 3) the amount of the
portion used in relation to the copyrighted work; and 4)the use's effect on the potential market
for the copyrighted work.

The Second Circuit's decision explained that the four factors are not to be weighed equally- in
particular, the Supreme Court has found the first (nature of use) and fourth (effect on market)
factors to be of particular importance.

Nature of the use

The Second Circuit held that the first factor weighed heavily in favour in finding fair use. It found
that Google's scanning and indexing is transformative, and that rather than superseding the
original work, adds something new and expands the utility of the original work.

In particular, the Court found that Google Books' search feature was particularly transformative.
Citing its own decision in Authors Guild v HathiTrust, it explained that the search feature was "a
quintessentially transformative use" because "the result of a word search is different in purpose,
expression, meaning and message from the page (and the book) from which it is drawn".

The Court rejected the Authors Guild's argument that the snippets provided by Google Books'
search results goes against a fair use finding. Rather, it held that the snippets, limited to parts of
pages surrounding the search term, adds to the transformative purpose by showing the user
just enough context surrounding the search results to help evaluate the book.

Similarly, the Court rejected the plaintiffs' argument that Google's profit motive weighs against
finding fair use. It explained that though Google indeed does have an overall profit motivation,
nearly every use has some sort of profit motive- the same could be said of classic fair use
examples such as newspapers that quote copyrighted works and parodists of popular songs.
Given the highly transformative nature of Google Books, the Court found that there was no
reason to find that the profit motivation overrides a finding for fair use.

Nature of copyrighted work

The Court also found that the second factor, the nature of the copyrighted work, favours a fair
use finding. Noting that this factor in isolation is rarely significant in fair use analysis, it
nevertheless held that the transformative nature of Google's use leans toward a finding of fair
use because the new use provides valuable information that has a different objective from the
original work.

Amount used in relation to copyrighted work as a whole

The Second Circuit held that the third factor, the amount of the protected work copied in
comparison to the work as a whole, also favours Google. It explained that though the fact that
Google copies the whole book may seem to weigh against a finding of fair use, Campbell
clarified that the analysis should be whether the copying was "reasonably appropriate to
achieve the copier's transformative purpose" and whether it became a competing substitute for
the original.

Under this analysis, the Court found in favour of fair use because even though Google copied
whole books, it was necessary to make the transformative search function possible. Also,
because Google did not make available to the public the whole works that it copied, its copy did
not act as a substitute for the original. Even the snippet view, which reveals more of the copied
work than just the search results, do not lead to a finding against fair use because Google
placed numerous safeguards into the system to prevent users from accessing the whole book.

Market substitution
The Second Circuit also ruled that the fourth factor also favoured Google because the service
did not adversely affect the potential market of the original work, especially given the
safeguards built into the snippet view feature. It explained that the cost in manpower needed to
compile enough randomly generated snippets to recreate a whole work would exceed that of
the cost of the book itself. Furthermore, even though some users may be able to use Google
Books instead of buying the original work, such as using it to find the date of a historical
occurrence, such information is not protected by copyright and thus would not lead to a finding
against fair use.

The Court also noted that even if Google Books caused some lost sales, such a showing is not
enough- the rights holder must establish a "meaningful or significant effect" on the market for
the original work.

No derivative work, no contributory infringement

The rest of the Authors Guild's arguments were similarly unconvincing. The Guild argued that its
authors had exclusive rights to create searching tools for their books, because such tools are
derivative works. The Court rejected this claim, finding that nothing in the statute or the logic
behind protecting derivative works supports that search and snippet functions should be
considered derivative works.

The Court also rejected the Guild's assertion that Google is a contributory infringer because of
infringement by the participating libraries that supplied the original books. It explained that the
evidence showed that the libraries' use of the digital books supplied by Google constituted fair
use. Furthermore, it explained that while it may be possible for the libraries to use the digital
copies in infringing ways and certain facts could establish Google as a contributory infringer,
there are no such facts in evidence.

In a written statement, Guild executive director Mary Rasenberger stated: "The Authors Guild is
disappointed that the Court has failed to reverse the District Court's faulty interpretation of the
fair use". She stated that it will appeal to the Supreme Court to "to correct the Second Circuit's
reductive understanding of fair use".

~~~~~~~~
By Peter Leung, MIP

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