In 2004 Google announced its Google Books project, this entailed scanning copies of books in order to create an electronic database of the books. These scanned copies could then be sent to participating libraries and would be made available in “snippet” form for online searches. It is estimated that since the start of the project Google has scanned more than twenty million books, the majority of which were out of print.
During the process, Google did not endeavour to secure permission from the relevant copyright holders for the usage of their copyrighted works. Subsequently, in 2005 the Authors Guild which advocates for the writers’ interests, along with three individual authors whose work had been scanned, brought a claim of copyright infringement against Google.
In March 2011, US Department of Justice (DoJ) intervened in a possible resolution of the matter, by lodging a statement of interest citing fears that any settlement would have an anti-competitive effect guaranteeing Google optimum licence terms.
The parties were compelled to lodge cross motions for summary judgment in the case, and nearly eight years after the claim was brought, the judge has finally dismissed the application by the Authors Guild & Ors.
(1) In 2004, the Google Books project comprised of two separate programs.
(a) “Partner Program” (initially named Google Print)
The Partner Program scanned and displayed books with the permission of the copyright holders, the aim of which was to enable publishers to increase awareness and revenue through increased sale of the books. Partners in this instance provided Google with a printed copy of the book which was subsequently scanned. Partners were able to control the amount of content which would be browsable online.
The revenue stream arose from the adverts featured alongside pages of the books. However in 2011, Google stopped displaying advertising on any book pages.
(b) The “Library Project”
Under this program Google was provided with books from various libraries which were scanned in their entirety. A participating library which had provided the book was then able to download a digital copy for their collection. The agreement established that a library would ensure that it abided by copyright laws and would not be provided with a digital copy of a book which another library had provided to Google for scanning.
Once scanned, Google would retain the digital version and then index the work in order to facilitate online searches. This means that effectively a user of the Google Books search engine would be able to search an entire book, and a search return conducted by Google would provide a list of those relevant books in which the phrase and/or words searched appear. A user would then be directed to an “about the book” page and provided with information about the work, at this point a link is shown which offers a user the opportunity to “get this book in print” under an “About the Book” banner, which provides links to retailers and libraries with the book in stock.
Google implemented security measures that would prevent a user from being able to view an entire book. Each page of a snippet view book is divided into eighths, and a user will only be able to view, on each individual search three snippets. Though a user is able to alter their search which would theoretically allow them to view more than three eighths of each page, this will not occur if an identical search is simply repeated. In addition, irrespective of the search terms entered, a portion of the page will always be blacked out. This security measure was referred to as ‘blacklisting’. Practically speaking therefore, no piece of work in its full form would be displayed on Google Books.
Under the Library Project the copyright owners permission was not sought and nor were they compensated for the scanning and holding of the digital version of their work, by either participating libraries or Google.
Application of the Fair Use Defence
Judge Chin noted in his judgment that for the purposes of applying the law and testing the fair use defence, he had assumed prima facie, that copyright infringement by Google was established (s.106 of Copyright Act).
Fair use is an absolute defence to copyright infringement with the burden on the defendant to prove its application, as established in Campbell v. Acuff-Rose Music Inc. (510 U.S). The use of copyrighted works in order to “fulfil copyright’s very purpose, to promote the Progress of Science and useful Arts” was permissible in these circumstances.
Further to this s.107 CA enshrined the factors to consider in determining fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Applying the doctrine from the copyright infringement cases of Campbell (510 U.S) and Harper & Row (471 U.S) these fair use factors should be ‘weighed together’. The existing cases emphasised a key consideration in any determination of the factors is whether, on the facts, the use of work may be deemed to be transformative. This was considered under the first factor of the “Purpose and Character of Use”. US Courts have helped to develop principles of guidance for determining whether use may be deemed “transformative”. A consideration for this first factor will be whether the use has been utilised in order to create something new, for example it has provided a new perspective or facilitated a new use of the material. Copying existing work verbatim into new work is not sufficient to constitute “transformative”.
Applying the facts of the claim to each factor, Judge Chin determined whether each factor could be found for either Google or the Authors Guild and Ors.
(1) Purpose and Character of Use – The “Transformative Factor”;
Google’s scanning of the books has facilitated and enabled libraries, researchers, scholars and readers in general to find and identify books. Judge Chin found in resounding terms the snippet service to be transformative. He noted that it had empowered the public to more easily and efficiently locate books that may be of interest. Google Books has had a similarly transformative effect on quantitative research – this was deemed by the court as having gone so far as to have created something new in the use of text in books and; “adds value to the original”.
Under this factor, Chin also considered the argument put forward by Authors Guild in particular – that Google is a for-profit commercial entity which should negate any other fair use argument. However, Chin noted that in accordance with previous case law, a commercial benefit will not necessarily counteract a fair use defence. It was noted that Google does not sell the scans or snippets, nor does it run adverts on the “About the Book” facility. Therefore though Google undoubtedly derive a commercial benefit from their Google Books projects, there is no direct commercialisation of the work scanned and made available.
Judge Chin therefore found this factor to be strongly in favour of determining fair use for Google.
(2) Nature of Copyrighted Works
Though the majority of the work scanned by Google has been non-fiction, fictional work as well as in-print and out-of-print work has also been scanned. In most instances, in accordance with Stewart v Abend (495 U.S) fictional work is granted a greater degree of copyright protection.
However, Judge Chin noted that the consideration of the vast majority being non-fictional and/or out-of-print and that all the work was made available to the public.
Thus this second factor also favoured Google.
(3) Amount and Substantiality of Portion Used
Google Book scans the entire text of the work, and is entirely reliant on its having a copy of the entire work. The court acknowledged that Google had limited the amount actually provided to an individual user via its implementation of various security measures including its ‘blacklisting device’ on individual pages.
Though in previous cases the use of the entire text did not necessarily invalidate a fair use defence, in his judgment Chin found against Google on this factor.
(4) Effect of Use Upon Potential Market or Value
Under this factor, the authors and the Authors Guild argued that Google Books negatively impacts the book market, and acts as a replacement for books. They also argued that individual users could, by virtue of slight alterations to their search wording, be granted access to much more significant portion of the work, above and beyond that of a ‘snippet’.
Judge Chin disagreed with both of these assertions. He did not find it likely that a user would take the time to alter searches in such a way that would result in them viewing a greater portion of the work. In addition he noted that the ‘blacklisting’ device would hamper any individual user from viewing the work in its full form.
Judge Chin determined that in actuality the Google Books facility serves to enhance sales of books by virtue of increasing their availability to the public. Chin noted that a key determination in the success of a work will be whether it has been discovered. Google, he argued, by disseminating work to the public facilitated increased sales. The increasing use of online sales by the public and the links that Google provides to buy the books shown meant that Google has created another platform to improve the sales of books.
In light of this Judge Chin determined that this factor weighed strongly in favour of Google’s fair use defence.
Weighing the Factors
Having considered each individual factor, Judge Chin went on in his judgment to consider the other, non statutory consideration argued in the claim.
He took the opportunity to lay out what he perceived to be the numerous public benefits that the Google Books service had provided. Google Books, he argued serves to advance the progress of arts and sciences without adversely impacting the rights of copyright holders. Since its creation it has become an invaluable research tool for the identification and location of books, it has allowed academics to carry out full-text searches of millions of books. It has contributed to the continued preservation of books by scanning out-of-print books and providing them with a platform to be viewed and read which it has not had in recent times. Finally it has generated new audiences to books who may not otherwise have such access, including those who may be print-disabled or in remote locations without access to a library with vast resources.
Having resolutely found in favour of Google under fair use in relation to the snippets and the Partner Program, Judge Chin similarly ruled that the Library project did not constitute copyright infringement. When a library provides a book which it owns already, Chin deemed that procuring a digital copy of the work would not result in an infringement and their action would also fall within the remit of fair use. Judge Chin also exonerated Google under the Library Project as he argued that if the participating libraries are not liable for copyright infringement nor could Google be.
It is very likely that the Authors Guild will appeal the case. Authors Guild, Executive Director Paul Aiken in a statement made on the day of the decision, declared an intent to appeal the decision. He stated that the “case presents a fundamental challenge to copyright that merits review by a higher court”. He expressed disappointment with Judge Chin’s interpretation of the doctrine of fair use and the facts, asserting “such mass digitization and exploitation far exceeds the bounds of fair use defense.”
It is arguable that the length of time elapsed since the beginning of litigation has served to benefit Google. What may have been seen as an audacious move in 2004 to digitise millions of books, is much less so in an ever evolving digital world.
Society has moved on from the traditional format of using books, whether for research or reading. Since the creation of devices such as the Amazon Kindle, first released in 2007, the digitisation of books in this way, is more acceptable. The acceptance and greater frequency of the work in this way also arguably contributed to the “transformative” finding for Google – after all it is the users of the service that enabled Judge Chin to conclude it transformative.
Google was also able, during this period to refine the project. For example, by removing advertising from the Google Books pages in 2011 they were in a position to more robustly argue against accusations of commercial gain.
Impact for UK Copyright Law
The decision is bound to lead to concerns in the UK that the doctrine of “Fair Dealing” might be used as a defence to similar action. However, it should be noted that fair dealing is construed much more narrowly than fair use. The decision by Judge Chin, is still restricted to the jurisdiction of the US, therefore Google would continue to be liable to any action within the EU. Notably, the UK equivalent of the Authors Guild, the Society of Authors, declared their support in bringing this action against Google.
Fair dealing in the UK permits the use of copyrighted work for; research and private study, criticism or review or reporting current events. A recent EU Directive 2012/38/EU will allow the scanning of ‘orphan works’, which will include books where the author cannot be found following ‘diligent search’. This suggests a distinct reticence within the UK and EU to extend the permissible use of in-copyright work.
However, libraries within Europe, including the Bodleian in Oxford are now participating with Google under their Library Project. Under the Copyright, Designs and Patents Act, archiving by libraries in limited form is permissible. Currently the work Google is scanning within Europe is limited to those which are out of copyright. Therefore within the remit of legislation, it may seem inevitable that with the ringing endorsement of Judge Chin’s decision Google may feel more confident should they expand the volume of books scanned.