The (Not) Little (Search) Engine That Could

Twenty million books. Easily accessible by the public. Searchable in less than a second. For free.

But is it legal?

Beginning in 2004, Google started copying books. Through partnerships between its Google Books project and participating libraries, Google has since copied over twenty million books. It has indexed them and rendered them searchable on the Internet. When a user selects a Google Books search result, he or she sees a “snippet view”—a few lines of text surrounding the located search term in order to provide context.

Many of these books are copyrighted. Viewing Google’s practices as unlawful copyright infringement, the Authors Guild—a non-profit that “supports working authors, advocates for authors’ rights, and provides a community for [its] members”—sued Google in 2005. After protracted litigation and multiple court decisions, some finality has been reached. On October 16, the Second Circuit Court of Appeals—the federal appellate court for Connecticut, New York, and Vermont—issued its decision in Authors Guild v. Google, Inc.

Copyright and Fair Use 

The Constitution grants Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Under this power, Congress has enacted numerous copyright laws. Broadly speaking, copyright grants authors and other creators exclusive control over the copying of their works.

The federal Copyright Act codifies a “fair use” exception to copyright protection. “[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” In other words, people may use copyrighted works if that use is a “fair use.”

The Four Factors 

When analyzing whether a use is a “fair use,” a court considers four statutory factors. The first factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Put differently, the court asks “whether and to what extent the new work is transformative.” Here, the court determined that “Google’s making of a digital copy” of books “for the purpose of enabling a search for identification . . . involves a highly transformative purpose.” It distinguished between making the copies publicly available (which Google didn’t do) and making information (including the “snippet view”) about the books available (which Google did do).

Rejecting the Authors Guild’s argument, the court further noted that Google’s use was transformative regardless of its commercial motivation. This hints at a basic economic truth: the public interest and one’s own self-interest do not necessarily conflict. Rather, in the commercial world, self-interest and the public interest often support each other. When Google creates searchable digital books in order to generate a profit, it simultaneously advances the public interest of making knowledge readily accessible.

The second factor is “the nature of the copyrighted work.” Noting that this factor “has rarely played a significant role in the determination of a fair use dispute,” the court followed tradition. This factor proved unimportant in the court’s analysis.

The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Even though Google had copied entire books, it did not reveal the entire copy to the public. It didn’t even come close: at most, 16% of any book was revealed. Also important was the fact that the snippet views did not offer the market “a significantly competing substitute for the copyrighted work.”

Finally, the fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” The court asked whether, despite its transformative purpose, Google Books nevertheless harmed the value of the copyrighted original. Though the court did acknowledge that “the snippet function can cause some loss of sales,” it reasoned that those lost sales would not have been protected by copyright in the first instance:

For example, a student writing a paper on Franklin D. Roosevelt might need to learn the year Roosevelt was stricken with polio. By entering “Roosevelt polio” in a Google Books search, the student would be taken to (among numerous sites) a snippet from page 31 of Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981), telling that the polio attack occurred in 1921. This would satisfy the searcher’s need for the book, eliminating any need to purchase it or acquire it from a library. But what the searcher derived from the snippet was a historical fact. Author Goldberg’s copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression.

There’s something oddly stunning about this part of the Authors Guild’s argument. By allowing them to search text and preview snippets, Google Books presents users with a myriad of book options—many of which would have otherwise never been found. In this way, it is perfectly plausible that Google Books actually led to increased sales of copyrighted materials. Unfortunately, our copyright-laden society trains authors to reflexively assume that stronger copyright protection always generates more revenue, and weaker protection always screws over the creative class.

In Conclusion

In the end, the court decided that every factor weighed in favor of Google. Therefore, Google Books, at least as it currently exists, operates as a fair use and does not infringe any copyright. In its amicus curiae brief filed in the case, the Electronic Frontier Foundation described fair use as “the safety valve for innovation.” It is only fitting, then, that such an innovative tool as Google Books has been held lawful under the fair use doctrine.

The court also disposed of three additional arguments made by the Authors Guild. First, Google did not usurp any authors’ derivate rights. Second, Google adequately protects its copies of books against security breaches (e.g., hacking) and thus does not expose the value of copyrighted materials to undue risk. Finally, Google does not infringe when it shares digital copies with participating libraries.

All in all, this decision sets forth a framework generally sympathetic to, and supportive of, the positive effects of free market commerce, open information, and innovation. It reminds us that copyright privilege cannot be invoked if it also serves interests antithetical to the progress of science and art. Consumer group Public Knowledge hailed the decision, stating, “With this decision, we will hopefully see a renewal of efforts to digitize and open up access to culture and knowledge.” Hopefully, this decision marks a sign of things to come.


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