Google wins book-scanning case in the US: Judge finds fair use

by Béatrice Martinet Farano

In a ruling issued by the Southern District of New-York on 14 November 2013, Google won a huge victory in its eight-year battle against the Authors Guild over its Google Books Project.

In this case, the Authors Guild commenced a copyright infringement action against Google after it started scanning more than 20 million books from libraries to make them available on the Internet (although only by “snippets”).

After many years of litigation and an aborted global settlement agreement (rejected by Judge Chin – then sitting  at the second circuit –  as “unfair”), Judge Chin, now sitting as the District Court Judge, granted summary judgment to Google on the ground of fair use.

To reach this result, Judge Chin conducted a thorough analysis under the four factors of the fair use doctrine and concluded that only the third factor (amount and substantiality of portion used) weight “slightly” against Google since the books were scanned in their entirety.

As for the other three factors, Judge Chin found that :

(i)The first factor, namely the purpose and character of the use, weighted in favor of Google. In this regard, the Judge held that Google’s use of the copyrighted work was “highly transformative” in that Google had transformed book text into data for purpose of substantive research. Moreover, Judge Chin observed that Google Books did not supersede or supplant books since it was not a tool to read books (since they were only delivered through snippets) and insisted that even if Google was a for-profit entity, it still served several important educational purposes.

(ii) the second factor, namely the nature of copyrighted works, also favored a finding of fair use since most scanned works (93%!) were non-fiction books and the books were published works

(iii) Finally, the fourth factor, namely the effect of use upon potential market or value, also weighed in favor of Google. The Judge stressed that Google did not sell its scans and concluded that a reasonable fact-finder could only find that Google Books enhanced the sales of books to the benefit of copyright holders in that it provided a way for author’s works to be noticed, much like traditional in-store book displays.

In view of this analysis Judged Chin concluded that Google Books provided significant public benefits and granted Google’s motion for summary judgment. The Authors Guild has already made clear that they will appeal the decision.