In revisiting this case, we remember that Google entered into agreements with numerous libraries such as Harvard University, the New York Public Library, and the Library of Congress to digitize millions of print books maintained in the collections of these libraries. Although most of the books Google scanned were out of print, the majority were still protected by copyright. However, each of the books protected by copyright and scanned by Google were only displayed via three snippet views as a result of a Google books search. Each snippet view also referred researchers to potential sellers of the books, such as Amazon.com. Google additionally created several limitations for each snippet view. Some of these limitations included only displaying one snippet view per page, no more than three snippet views were accessible regardless of how many times a user searched for a book, and at least one out of every ten pages of a book was redacted.
The Authors Guild objected to the scanning of the books in these various collections and sued Google alleging that Google committed copyright infringement by scanning the books, giving digital copies to the participating libraries (each partner library received a digital copy of each of their own books that was scanned), and by displaying portions of books via search engine results. The district court held that such scanning was not copyright infringement, served a social utility, and was instead fair use. This case is now on appeal.
In retrospect, some interesting insights manifested from this case. One of these interesting insights discussed at the Ball State Copyright Conference I attended last week was that the district court ruled in favor of fair use because Google used the copyrighted materials for a transformative purpose (for a purpose separate from the original creators’ purpose). The authors and publishers created these works to distribute information and to make money, whereas, Google used the works to create a searchable index and a location tool, which offered a new social value. Further, this transformative use created a transformative market, so it did not directly compete with the market served by the original creation. The court further noted that Google was really not directly benefiting monetarily from this transformative use. More importantly, this case and other recent cases indicated that when a court deemed a use of a copyrighted work as being transformative, the other three factors seemed to fall by the wayside. Why? The transformative purpose meets the first factor of fair use (purpose of use). Additionally, the transformative purpose creates a transformative market, thus the use complies with the fourth factor of fair use (the effect on the original market) and the transformative use does not directly compete with the original market; and the transformative use usually assuages any negative manifested issues in regard to how much of a work is used (the third factor), because the transformative nature of the use nullifies any lengthy use of the original item.
In sum, when a copyrighted item is used in a genuinely transformative manner, the judicial branch is consistently changing the way it analyzes fair use. The more transformative a use, the more the concerns with commercial effect and how much of an item is used becomes less important. Therefore, this is a reminder, that for now, fair use and transformative use is a fruitful tool for libraries to utilize when using copyrighted items. Although Congress is currently reviewing the modern Copyright Act, and it may issue a proposed new Act in one of the next sessions, the Judicial Branch’s current interpretation of fair use is greatly benefiting libraries in America. Therefore, it might not be a bad result for libraries if Congress leaves the current Copyright Act as-is.