Google Book Project & fair use issue
Ruling in Google Books Library case was announced last week by Judge Denny Chin.
The decision referrers to the litigation between Authors Guild and Google which has been still ongoing despite the settlement concluded between Google and APP last year. The main issue to examine after rendering the case by the Court of Appeals to the District Court for the Southern District of New York, was whether Google’s Project could fit into fair use frames.
According to § 107 of the US Copyright Act, four factors must be considered before accepting fair use defence. And to those did the Judge Chin refer presenting his argumentation as follows:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes
Google’s use is highly transformative. Books are digitized and transformed into a comprehensive word index which helps identify and find books needed by potential readers. Also the use of book text to facilitate search through the display of snippets is of a transformative character. It opens the new field of research by transforming book text into data for the purpose of substantive research. The Books Project cannot supersede or supplant books because it is not a tool to be used to read books.
The court also notices that Google is a for-profit entity and gains some commercial benefit from the project, but gives more credit to the importance of the educational purposes of the Project.
2. Nature of copyrighted works
Two arguments speak in favour of Google in the context of the second factor: the books have been published before and most of them are non-fiction ones (and works of fiction are entitled to greater copyright protection).
3. Amount and Substantiality of Portion Used
This is true that Google scans the entire books and copies their verbatim expression. It should be however iterated that „copying the entirety of a work is sometimes necessary to make a fair use of the image” (Sony Corp. of Am. v. Universal City Studios), Inc.). Google’s offering of full-text search of books and full-work reproduction is critical to the functioning of Google Books. Moreover, the amount of text displayed in response to a search is limited.
4. Effect of use upon potential market or value
The Judge does not share the plaintiff’s view that Google Books can negatively impact the market for books. The scans do not replace the books and Google does not sell them. Inversely, Google Books may enhance the sales of books. Thereby copyright holders may gain some profit and authors may become noticed.
The Judge, considering the four factors in favour of Google, generously underlined the benefits of the Project. He concluded that the Project was covered by fair use and consequently found for Google.
Regardless of what one may think about the turnover in the Judges views, some positive aspects of the ruling are worth noticing: the public interest did not remain ignored and the argumentation of the decision was based on common sense rather than on a black-and-white and separated from reality interpretation of the statute.