On December 31, 2015, the Authors Guild filed its petition for a writ of certiorari to the Supreme Court of the United States asking for review of the Second Circuit’s decision affirming fair use of the Google Books project. The Second Circuit held that Google’s copying of books submitted to it by libraries and display of snippets is transformative and a fair use. Furthermore, the Second Circuit held that Google’s provision of digital copies to its partners libraries that submitted the particular work is not an infringement.
The Authors Guild has challenged the Second Circuit’s ruling, questioning when a use is “transformative.” The Authors Guild asserts in its petition that there is a circuit split over the meaning of transformativeness and argues that the Second Circuit’s finding that Google’s digitization of works for the creation of a full-text search database and display of snippets was not transformative because it did not create new expression. The Authors Guild also asserts that the Second Circuit’s focus on transformativeness shifts the test for fair use from the statutory four fair use factors to a single factor.
It is far from clear, however, whether the Supreme Court will grant the Authors Guild’s petition. First, despite the Authors Guild claims a circuit split on the meaning of transformativeness, it is not clear that the six circuits cited in the petition have actually split on this issue as the facts of the cited cases differ greatly. Furthermore, the argument that the Second Circuit has shifted to a one-factor test is clearly unsupported by the court’s October decision. In its opinion in the Google Books case, as well as other fair use cases, the Second Circuit carefully analyzes each of the four fair use factors. While the transformativeness of the use is certainly an important aspect, it is not the only factor and the Second Circuit certainly does not treat it as the sole determinative one.
Soon after the Second Circuit opinion was released, Professor Jane Ginsburg noted in her article, Google Books and Fair Use: From Implausible to Inevitable? that the Google Books decision “probably surprised no one.” She noted also that “courts came to interpret Campbell’s reference to ‘something new, with a further purpose’ to encompass copying that does not add ‘new expression,’ so long as the copying gives the prior work ‘new meaning.’ Fair use cases began to drift from ‘transformative work’ to ‘transformative purpose,’ in the latter instance, copying of an entire work, without creating a new work, could be excused, particularly if the court perceived a sufficient public benefit in the appropriation.” Ginsburg acknowledges that courts have interpreted transformativeness to include a transformative purpose and does not cite any circuit split on this issue.
Furthermore, in reviewing the opinion, Professor Ginsburg stated that the Second Circuit’s opinion was restrained and did not expand fair use.
The court’s cautious circumscription thus suggests that the Google Books decision does not herald a new extension of an already-expanded fair use defense, but (at least until a competitor with equivalent resources appears) is instead sui generis. The Second Circuit’s abstention from addressing some of the district court’s fair use analyses similarly betokens the decision’s modest scope. For example, the district court embraced the long-spurned argument that defendant’s copying does the plaintiff a favor by bringing the work to greater public attention (“a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders”), but the Second Circuit’s opinion forgoes such contentious flourishes.
Given that the Google Books opinion does not represent a true circuit split, the Second Circuit opinion does in fact review all four fair use factors, and the outcome was an expected one, the Supreme Court may want to pass on accepting the Authors Guild’s petition for certiorari.