Jim Bouton, one of the designated hitters represented by the Authors Guild took another swing at Google Books services program in the United States Court of Appeal (2nd Circuit) (“the Court”). The Court rejected the copyright challenge brought forward by the Authors Guild and concluded that Google’s activities were transformative in nature and thus fell within the realm of non-infringing fair use (or fair territory – last baseball reference, I promise).
In essence, through its bi-lateral agreements with the world’s largest libraries, Google would acquire books from the library’s collections, which it would then digitally scan and translate into a machine-readable text. This machine-readable text would allow users to search for key words or terms and be provided with a list of all books in Google’s database in which those terms appear, as well as the number of times the word or term appears in each book.
According to Google, this index-like service instantaneously provided the public with vital information about books that “would otherwise not be obtainable in lifetimes of searching” without “providing the public with a substantial substitute for matter protected by the [Authors Guild’s] copyright interests in the original works or derivatives of them.” The Authors Guild took issue with this and contended that permitting users to read portions of the book, through Google’ “snippet function” service, was not a “transformative use” as articulated in Campbell v. Acuff-Rose Music, Inc.
The Court reiterating the essence of Campbell, stated that “the more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work”.
In the case at hand, the Court found the ability for users to search millions of books for a particular term of interest was transformative and that the information displayed by Google was intentionally limited to ensure that the search results did not provide for a substitute of the original work.
Not everyone is in complete agreement with the Court’s interpretation of “transformative use”, according to Hillel Parness, “Google Books is not the digital equivalent of a library card catalogue or even a CliffsNotes summary of each text, but a full-text compendium of all the books Google scanned….Google has not transformed the text of the books in any way—indeed maintaining the full text exactly as published is necessary and essential for the service to function”.
The Author’s Guild shared similar sentiments and hinted at appealing the ruling and hoped that the Supreme Court would correct the Court’s “reductive understanding of fair use”.
Unfortunately I will have to part ways with Mr. Parness and the Authors Guild and argue that the Court came to the right decision – sufficiently balancing both the interests of the public and those of the authors. The search services provided by Google are tremendously useful to researchers, students, and to the public at large, and at law, the conduct falls squarely in the realm of non- infringing fair use.
Although I am persuaded by this argument, I am also sympathetic to the concerns raised by the Authors Guild, (which were dismissed by the Court); namely that, despite the security assurances made by Google, rights-holders would be placed at risk of hacking, which could lead to the widespread unauthorized publication of their works on the web, resulting in the devaluation of their copyright. The cybersecurity threat is very real, as we have learned over the last year, but unfortunately, the fair use provision contained within the Copyright Act is not the optimal (or even recommended) tool to combat the risk of future online infringement. It will be interesting to see whether or not the Supreme Court of the United States considers this issue, if it decides to hear the case, and conducts its own fair use analysis.
Mahdi M. Hussein is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.
