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Media Alerts - Authors Guild v. Google, Inc. - Second Circuit
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October 17, 2015
  Authors Guild v. Google, Inc. - Second Circuit
Headline: A "Snippet" in Time is Perfectly Fine: Second Circuit Holds Google's Online Searchable Libraries of Copyrighted Books is '"Fair Use" and Does Not Infringe Book Authors' Copyrights

Areas of Law: Copyright, Class Action

Issues Presented: Whether Google's digital copying of plaintiffs' copyright protected works, submitted to Google by libraries without the authors' authorization, to make them publically searchable by internet users for display of limited 'snippets' from those works, was sufficiently transformative to constitute fair use and, therefore, did not infringe authors' copyrights.

Whether Google's provision of complete digitized copies of plaintiffs' works to libraries that supplied the copyrighted works in hard copy, on the understanding that the libraries would use the copies in a manner consistent with copyright law, constituted copyright infringement.

Brief Summary: Plaintiffs are authors of published and copyrighted books. Under an agreement with participating libraries, and without the authorization or consent from plaintiffs, defendant Google, Inc. ("Google") received and scanned complete copies of plaintiffs' works to create a searchable database for research purposes. Plaintiffs brought a class action suit in the United States District Court for the Southern District of New York alleging copyright infringement.

The district court rejected an early proposed settlement and, following the district court's certification of plaintiffs' fourth amended class action complaint, Google appealed from the certification and moved for summary judgment, asserting their use of the works met the "fair use" defense under copyright law 17 U.S.C. § 107. The Second Circuit provisionally vacated the class certification without addressing the merits and remanded the case for purposes of resolving Google's fair use defense. On remand, the district court granted summary judgment, dismissing plaintiffs' claims with prejudice. Plaintiffs timely appealed and the United States Court of Appeals for the Second Circuit affirmed, holding that Google's use of the works was fair use under copyright law because its use of the works was transformative, its display of copyrighted material was properly limited, and Google Books did not serve as a market substitute for the original works.

To read the full opinion, visit:
">http://www.ca2.uscourt.../de.....a/1/hilite/


Extended Summary: Plaintiffs are authors of published and copyrighted books. Defendant Google, Inc. ("Google") received and scanned complete copies of plaintiffs' works to create a searchable database for research purposes for its Google Library Project and Google Books search tool. The Google Library Project involved bilateral agreements between defendant and several of the world's major research libraries. These agreements permitted participating libraries to submit books form their collections to Google, which Google would scan, digitize, and index. Google retained the original scanned image of each work and stored it on servers protected by the same security systems used by Google to shield its own confidential information. Google then used these works - more than 20 million in all - to create a searchable database for research purposes. The agreements, even in their least restrictive form, required the libraries to employ digital copies of the scanned works in conformity with federal copyright law.

For its Google Books search tool, Google exhibited samples of plaintiffs' works through a publicly available search function, displaying a "snippet view" that contained three lines of sample text containing the searched-for terms in addition to telling the number of times the word or term selected by the searcher appeared in the text of the book. In launching the search tool, Google displayed no advertising to the user of the search function, nor did it receive direct payment from a user's activities. Google allowed only the first usage of the term searched for on a given page, limited to a maximum of three snippets. Google also "blacklisted" one snippet on each page and one complete page out of every ten, making those portions of the work unavailable for snippet view. This amounted to approximately 22% of the total text of a given work.

Plaintiffs brought a class action suit in the United States District Court for the Southern District of New York under 17 U.S.C. § 107 alleging copyright infringement. The district court rejected an early proposed settlement and, following the district court's certification of plaintiffs' fourth amended class action complaint, Google appealed from the certification and moved for summary judgment, asserting their use of the works met the "fair use" defense under copyright law. The Second Circuit provisionally vacated the class certification without addressing the merits and remanded the case for purposes of resolving Google's fair use defense. On remand, the district court granted summary judgment, dismissing plaintiffs' claims with prejudice. Plaintiffs timely appealed and the United States Court of Appeals for the Second Circuit.

On appeal, plaintiffs presented four arguments challenging the district court's ruling. First, they argued that digital copying entire books, and allowing internet users a window into small snippets, was not a "transformative use," and instead provided a substitute for the work. Second, they contended that, although Google made the works publically accessible without direct monetary gain, its revenue from its dominance of the internet search market precluded a fair-use finding. Third, plaintiffs suggested that Google's activities infringed upon their derivative rights by depriving them of revenues or other benefits they would gain from licensed search markets. Finally, plaintiffs contended that the digitized storage of the copyrighted works created a vulnerability that hackers could exploit to disseminate the full texts in contravention of plaintiffs' rights.

The Second Court began by discussing the common law origins of fair use, "which permits unauthorized copying in some circumstances, so as to further copyright's very purpose, to promote the Progress of Science and useful Arts" and was codified in 17 U.S.C. § 107 by Congress in a four factor test to determine fair use. The statute provides that "[t]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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."

The Second Circuit highlighted the Supreme Court's historical grant of greater weight to the first factor, the "purpose and character of the secondary use," and to the fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work," with the fourth factor having the greatest importance. In its analysis, the Court relied significantly on its 2014 decision in Authors Guild, Inc. v. HathiTrust, in which authors brought claims of copyright infringement against an entity formed by libraries participating in the Google Library Project to pool digital copies of books provided to them by Google. In HathiTrust, the Second Circuit held that the making of digital copies and the indexing of those copies via a search tool were fair uses, because "the creation of a full-text searchable database is a quintessentially transformative use." While the Court recognized distinctions between HathiTrust and the case before it, such as Google's display of a "snippet view" and the fact that defendant Google, unlike the defendant in HathiTrust, was a for-profit commercial corporation, it did not find those distinctions destructive to a fair use defense. Instead, the Court examined the nature of the snippets in detail. While the Court recognized that the snippet function could cause some loss of sales for plaintiffs, the fact that a study conducted by plaintiffs could reveal no more than 16% of a book, and because of the snippets' "brief . . . cumbersome, disjointed, and incomplete nature," the Court held that the Google Books search tool constituted a "fair use" did not provide a "significant substitute" for the purchase of plaintiffs' works.

The Court also rejected plaintiffs' argument that Google's use deprived them of derivative rights to revenue from licensed searches finding Google's use simply enabled members of the public to obtain information about whether those works were relevant to their research projects or other interests. Given the surgical manner in which Google restricted the snippets to provide a minimum of contextual background to members of the public, the court held such restriction did not infringe upon plaintiffs' derivative rights. The Court also rejected plaintiffs' argument that Google's storage of digitized copies of their works might expose plaintiffs' works to hackers, holding the argument "theoretically sound," but ineffectual in the absence of any evidence of an "impending" threat. The Court also noted plaintiffs' own security expert had praised Google's security systems, which it used to protect its own proprietary data in addition to plaintiffs' books. Finally, the Court held that defendant's agreements with libraries under the Google Library Project sufficient to protect against plaintiffs' copyright infringement claims because those libraries had agreed to adhere to federal copyright law in their use of Google Library Project texts.

To read the full opinion, visit:
">http://www.ca2.uscourt.../de.....a/1/hilite/


Panel: Circuit Judges Leval, Cabranes, and Parker

Argument Date: 12/03/2014

Argument Location: New York, NY

Date of Issued Opinion: 10/16/2015

Docket Number: 13-4829-cv

Decided: Affirmed

Case Alert Author: Jake B. Sher

Counsel: Paul M. Smith, Jenner & Block LLP, Washington, DC, for Plaintiff-Appellants; Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Defendant-Appellee.

Author of Opinion: Judge Leval

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

Edited: 10/19/2015 at 06:11 AM by Elyse Diamond

    Posted By: Elyse Diamond @ 10/17/2015 10:17 AM     2nd Circuit  

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