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Read ‘Em and Weep: Google Books wins major ruling after eight year legal battle

Since 2004, Google has digitally scanned more than 20 million books for users to search and browse.  Many of those books are protected by copyright and remain in-print.  The Authors Guild, Inc. and several individual authors sued Google for copyright infringement for its unauthorized copying and display of their protected works.  In response, Google asserted the “fair use” defense to the allegations of copyright infringement.  Over eight years after the lawsuit was filed, the United States District Court for the Southern District of New York recently handed down its ruling concerning Google’s “fair use” defense.  This decision is certain to have far reaching implications on Copyright Law and may expand the scope of what constitutes “fair use.”

The purpose of copyright protection is to incentivize the development of creative works, or, as the U.S. Constitution puts it, “to promote the Progress of Science and Useful Arts.”  With the protection of copyright, authors may prevent others from using their works in certain ways without their permission.  Because this enforcement mechanism can sometimes be wielded to stifle creative innovation, the law also allows would be infringers to make certain fair uses of an otherwise protected work.  So what constitutes a “fair use?”  

The “fair use” doctrine is set forth in Section 107 of the U.S. Copyright Act, which provides:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”    

Accordingly, courts must consider these factors and weigh them together when determining whether a particular application of a copyrighted work counts as a “fair use.”  Despite roughly eight years of litigation over these issues, the district court’s opinion on this topic was quite succinct.  The court determined that Google’s use of others’ works was “transformative.”  In other words, rather than replacing the need for the books it copied into its database, Google has, according to the court, provided a valuable search tool for readers, scholars, researchers, libraries, and cite-checkers.  The Google Books project has also opened new fields of data and text mining, as well as increased access to books.  The benefits of the project are, in the court’s eyes, enough to outweigh the fact that Google has copied over 20 million full texts and has presumably made money off of its efforts.  For these reasons, Google will not be liable to the authors for copyright infringement.

This opinion establishes an important marker in the “fair use” doctrine, one where new and expansive technologies will continue to be looked upon with a favorable eye by the judiciary.  However, eight years may not be the end of the story, especially if this decision is appealed.

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