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The Second Circuit Court of Appeals has ruled that the Google Books project is protected by fair use, after a lawsuit was filed against Google by the Authors Guild over claims of massive copyright infringement. For those unfamiliar with the project, Google Books is a massive archive of books which have been scanned and converted into a digital format. Books that are in the public domain can be viewed in their entirety, and some books still in copyright can be seen in a preview mode if the copyright holders have reached an agreement with Google. However, the aspect of the project that’s causing concern for the Author’s Guild is the snippet view Google provides for some books, without permission from the copyright holders of those books.

Google allows users to search the entire text of a book for a search term, and displays short snippets containing a few lines from the book which contain the term. In cases where the term occurs many times, only three snippets are shown to the user. Even if a user searches for a common word like “the” it would not be possible to reconstruct the entire book, because they can still only view three snippets.

In the ruling, the court considered many factors when deciding whether or not Google Books qualified as fair use. The first is the transformative nature of the work. Works which are highly transformative in nature are more likely to be considered fair use. The court considered the search and snippet function to be transformative because they provide information about the books, which serves a substantially different purpose than the books themselves. This snippet view provides useful information to users who are searching for books that cover a particular subject matter. Since a term may have different meanings in different fields, being able to see it used in context like the snippet view allows will provide even more information as to whether a particular book is relevant to a particular topic.

The court also rejected the argument that Google’s commercial interest in the project meant that it was not protected by fair use. Whether or not something is commercial or non-commercial may tip the scales in fair use, but it is often not the most important factor. The ruling mentions several categories of copying, including parodies and reviews, which are protected by fair use even if done for commercial purposes.

The court also considered the factor of substantiality, or how much of a work was copied. This factor is closely tied with another important factor, which is the effect the copying will have on a work’s market value. As stated in the ruling, “The larger the amount, or the more important the part, of the original that is copied, the greater the likelihood that the secondary work might serve as an effectively competing substitute for the original, and might therefore diminish the original rights holder’s sales and profits.” Although the Google Books project is copying books in their entirety, which would seem to weigh heavily against Google on the matter of substantiality, only small snippets are shared with the users, which is more relevant to the market value of the works. The court rejected an argument by the Author’s Guild that users could use the snippet view to cobble together a substitute for copyrighted works.

Not only did the court ultimately decide that the Google Books project is protected by fair use, but also that sharing digital copies of books with the libraries is protected by fair use as well. This sharing does not reduce the demand libraries have for copyrighted works, because the only books being shared are digital copies of books the libraries own and submitted to Google in the first place. The court also found that the purpose of sharing these digital copies was so that libraries could offer their own search function similar to Google’s. The ruling states, “If the library had created its own digital copy to enable its provision of fair use digital searches, the making of the digital copy would not have been 
infringement. Nor does it become an infringement because, instead of making its own digital 
copy, the library contracted with Google that Google would use its expertise and resources to 
make the digital conversion for the library’s benefit.”

Should the snippet view be protected by fair use, or should Google get permission from copyright holders? Leave your comments below.


Max Michael

Senior Writer

I’m a technology reporter located near the Innovation District of Kitchener-Waterloo, Ontario.