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Copyright Fair Use: SDNY Rules Google Books Fair Use

By Eric Misterovich

Since its inception in 2005, Google Books (“Google”) has been an object of disdain in the eyes of the Author’s Guild, Inc. (“Author”), a not-for-profit organization for authors. In fact, less than a year after Google’s launch, the Author’s Guild, along with other writers, filed two copyright suits against Google for scanning books and displaying book excerpts online. The sole purpose behind Google Books is for readers to be able to discover, search, and preview books from libraries and other sources worldwide. Author’s alleged that Google’s book system constituted copyright infringement, while Google defended itself by instituting a fair use defense (codified in §107 of the Copyright Act). Recently, a federal judge ruled with Google, holding that the online database is protected under fair use.

Plainly, fair use is any copying of copyrighted material done for a limited and “transformative” purpose. “Transformative” refers to whether the new work merely “supersedes” or “supplants” the original creation. Citing case law, the court in this case further defined fair use as, a doctrine that works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” Continuing to speak from case precedent, the court explained further that “[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose.” Notably, the court also noted “the determination of fair use is “an open-ended and context-sensitive inquiry,” and also calls for a “case-by-case analysis.”

The court determined that the sole issue in the case was whether Google changed the text enough for it to be considered transformative. The judge held that the, “use of book text to facilitate search through the display of snippets is transformative.” Additionally, it determined that Google “digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” To further validate its holding, the court analogized this case’s outcome with that of Perfect 10, Inc. v., whereby it was held that use of works, namely “thumbnail images,” including copyrighted photographs to facilitate searches was “transformative.”

Moreover, the court held that Google’s system uses words in a way they have not been used before. Specifically, “the frequency of words and trends in their usage provide substantive information.” Lastly, the court held that Google Books is not a tool to be used to read books, thus it doesn’t supersede or supplant books. Rather, it ‘”adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.”

If you seek advice on copyright fair use, contact the copyright lawyers at Revision Legal today at 855-473-8474.

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