The Supreme Court of the United States has denied the Authors Guild for petition of certiorari in Authors Guild v. Google. This decision leaves the Second Circuit’s opinion affirming fair use in the Google Books case intact. In the Second Circuit’s opinion from October 2015, the court released its unanimous opinion, authored by Judge Leval, affirming that Google’s copying of books and display of snippets in a search index is transformative and a fair use. Additionally, the Second Circuit found that Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.
We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “Fair Use Rights: For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.”
Fair use is a critical right and the most important limitation on the rights of the copyright holder. It permits the use of copyrighted material without permission from the rightholder under certain circumstances and has been called the “safety valve” of U.S. copyright law. Fair use is a broad and flexible doctrine that is responsive to change and can accommodate new technologies and developments. Notably, fair use is relied upon by everyone, including both users of copyrighted content as well as rights holders. This critical doctrine provides essential balance
Below are five news highlights on fair use from 2015 as well as my five favorite fair use resources created in 2015 (created for Fair Use/Fair Dealing Week 2015).
Five Fair Use Highlights from 2015:
- Second Circuit Affirms Fair Use in Google Books Case. In October 2015, the Second Circuit released its unanimous opinion, authored by Judge Leval, affirming the lower court’s fair use decision in Authors Guild v. Google, also known as the “Google Books” case. The Second Circuit held that Google’s copying of books and display of snippets in a search index is transformative and a fair use. This search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google. Additionally, the Second Circuit found that Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement. This digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.
- Ninth Circuit Rules Fair Use Must Be Considered Before DMCA Takedown Notices Sent. In September 2015, the Ninth Circuit ruled in Lenz v. Universal Music, also known as the “Dancing Baby” case that “copyright holders must consider fair use before sending a takedown notification, and that failure to do so raises triable issues as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.” In its reasoning, the Ninth Circuit confirmed that fair use is a right: “Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”
- YouTube Announces It Will Defend Some Creators’ Fair Use Claims. In November 2015, YouTube announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation. YouTube pledged to indemnify some of its creators whose fair use videos are subject to takedown notices for up to $1 million in legal costs if the takedown results in a copyright infringement lawsuit. This announcement is significant given that fair use provides essential balance to the copyright system, allowing for transformative uses including parody, commentary, criticism and innovation and videos posted to YouTube often rely on this important doctrine.
- Final Text of the Trans-Pacific Partnership (TPP) Agreement Includes Language on Limitations and Exceptions. In October 2015, the twelve negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam) announced agreement on the TPP, concluding five years of negotiations. Although the final copyright provisions of the TPP had mixed results and ARL was disappointed by a number of the provisions and the lack of transparency during the negotiations, one of the positive aspects of the agreement was the inclusion and improvements in the final text on limitations and exceptions. The final text included language based off part of the United States’ fair use provision, with an addition for those with print disabilities, requiring “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.” The text confirms that the exceptions can apply “in the digital environment” as well as to uses with “commercial aspects.” Inclusion of this language is significant. While the final language could have been strengthened further, the final text still provides an obligation for parties to seek a balance and can be used as a basis for stronger language in future agreements. As noted by Jonathan Band in a paper exploring the evolution of the limitations and exceptions over the course of the TPP negotiations, “The incorporation of the non-exclusive list of legitimate purposes from 17 U.S.C. § 107 provides TPP countries a powerful basis for concluding that this balance is best achieved through the adoption of an open-ended flexible exception like fair use.”
- Authors Guild and HathiTrust settle last remaining issue (preservation); Second Circuit decision strongly affirming fair use stands. While the Second Circuit’s decision in the HathiTrust case was released in June 2014, the court did not resolve the issue of preservation, sending that issue back to the district court. In January 2015, the parties entered a settlement on the sole issue remaining issue, ending the litigation in a victory for HathiTrust and fair use. The Second Circuit’s decision found that creation of a full-text search database and providing access to the print disabled constituted fair use. In January 2015, however, the defendant libraries stipulated that they complied with Section 108(c) of the Copyright Act and agreed that for a period of five years, if they do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.” Authors Guild released a statement after the settlement, noting that it would not seek an appeal to the Supreme Court.
Five Great Fair Use Resources from 2015:
- Fair Use Fundamentals Infographic. In celebration of Fair Use Week 2015, ARL created this infographic explaining that fair use is a right, is vitally important, is for everybody and is everywhere.
- A Day in the Life of a Legislative Assistant. Jonathan Band authored this document, giving a sample day in the life of a legislative assistant. This sample day shows just how often fair use is relied upon on a daily basis.
- Video: Fair Use and Technology. Fred von Lohmann explains how fair use is essential to every day technology and how we encounter it on a daily basis.
- Podcast: Fair Use Protects Culture From Copyright, Not the Other Way Around. TechDirt created a great podcast devoted to the important doctrine of fair use and how it provides an essential balance to the copyright system.
- 12 Fair Use Myths and Facts. For Fair Use Week 2015, ARL also produced a “Myths and Facts” document on fair use, covering twelve myths about what fair use is and how it can be used.
So what’s next for fair use in 2016?
First, a reminder that Fair Use/Fair Dealing Week 2016 is quickly approaching and will take place from February 22-26, 2016. A number of organizations and institutions are already planning to participate and have great events planned. ARL will be creating a new infographic, hosting blog posts, and posting new videos on fair use. For more information on how to participate or to see the great resources from last year’s celebration, visit the Fair Use Week website.
Additionally, the Authors Guild’s Google Books case may not be over as the Authors Guild filed a petition for writ of certiorari to the Supreme Court on December 31, 2015. However, the Authors Guild’s petition does not appear to be a particular strong one. Despite the Authors Guild’s claims that there is a circuit split on the meaning of transformativeness, it is not clear that the six circuits cited have actually split on the issue as the facts of the cases differ significantly. Furthermore, the argument that the Second Circuit has shifted to a one-factor test is clearly unsupported by the court’s October decision; the Second Circuit carefully analyzes all four factors.
In fact, Professor Jane Ginsburg noted in her article, Google Books and Fair Use: From Implausible to Inevitable? that the Google Books decision is probably not worthy of Supreme Court review. She stated that the decision “probably surprised no one” and 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. She also pointed out that the Second Circuit’s opinion was restrained and did not expand the fair use doctrine. If the Supreme Court declines to hear the Google Books case, the Second Circuit’s decision will stand.
Additionally, as noted yesterday, the Copyright Office has issued a notice of a study the 1201 rulemaking process which creates exemptions on a three-year cycle to allow for circumvention of technological protection measures. The exemptions requested during each cycle represent non-infringing uses, such as those that would operate under fair use in the analog world (that is, without the digital locks placed on digital copies). The notice of inquiry includes a number of questions that are highly relevant to fair use. For example:
1. Please provide any insights or observations regarding the role and effectiveness of the prohibition on circumvention of technological measures in section 1201(a).
[. . .]
3. Should section 1201 be adjusted to provide for presumptive renewal of previously granted exemptions—for example, when there is no meaningful opposition to renewal—or otherwise be modified to streamline the process of continuing an existing exemption? If so, how?
[. . .]
8. Please assess whether the existing categories of permanent exemptions are necessary, relevant, and/or sufficient. How do the permanent exemptions affect the current state of reverse engineering, encryption research, and security testing? How do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities?
9. Please assess whether there are other permanent exemption categories that Congress should consider establishing—for example, to facilitate access to literary works by print-disabled persons?
While these are important questions and it is good to see that the Copyright Office is at least considering the idea of permanent exemptions and a streamlined process, these questions highlight the fundamental flaw of the 1201 rulemaking process. As noted by the Library Copyright Alliance’s statement for the Judiciary Subcommittee hearing on 1201 in September 2014:
The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.
Fair use should apply equally in the digital world and technological protection measures should not be used to limit the fair use right. The fact that every three years, proponents of exemptions must use a great deal of time and resources to seek renewal of or a grant of exemptions to anti-circumvention rules to exercise the fair use rights is problematic and inefficient.
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.
*This blog post is now available in a PDF version as an issue brief here*
On October 16, 2015, the U.S. Court of Appeals for the Second Circuit unanimously affirmed the lower court’s fair use decision in Authors Guild v. Google, also known as the “Google Books” case. Google, through its Library Project, made digital copies of tens of millions of books submitted to it by libraries. It then included these copies in a search index that displayed “snippets” in response to search queries. The Second Circuit held that the copying of the books and the display of snippets is transformative and a fair use. Furthermore, Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.
This decision follows directly from last year’s positive fair use decision in Authors Guild v. HathiTrust. There were two main differences between the two cases. Google is a commercial party, while HathiTrust is non-profit; and Google displays snippets, while HathiTrust just provides page numbers. Judge Leval, the federal judiciary’s foremost expert on fair use who developed the concept of transformative use, carefully explained why these differences did not affect the fair use analysis.
In 2004, Google initiated its Library Project where it partnered with major research libraries. These libraries submitted books from their collections to Google, which then scanned, indexed and made them machine-readable. Since 2004, Google has scanned and indexed more than 20 million books, most of which are non-fiction and out-of-print. The public can perform searches on the Google Books database, which in response to a query lists books containing the search term. Sometimes links are provided to where a particular book can be purchased or a library where the book can be located. No advertising is displayed to the user of the search function.
If a user clicked on a specific book, Google Books displays a maximum of three “snippets” containing the search term. It does not allow a user to increase the number of snippets through the same search term and also “blacklists” snippets and portions of the book from view. It disabled snippet view for works where the snippet would satisfy the need for the book and, since 2005, excluded the use of snippet view at the request of a rightsholder.
Google allowed its participating libraries to download the digital image and machine-readable versions of the books that a particular library submitted for scanning. The agreements with the libraries required libraries to abide by copyright law in using the downloaded copies and to prevent dissemination to the public at large.
The Authors Guild and several authors sued Google, asserting that the project infringed their copyright. Google filed for summary judgment, arguing that its use was a fair use and in 2013, the district court ruled in favor of Google.
The Plaintiffs, which include three authors (the Second Circuit previously held in Authors Guild v. HathiTrust that the Authors Guild did not have standing to sue on behalf of its members) appealed to the Second Circuit, contending that 1) Google’s copying of entire books and providing snippet views provided a substitute for Plaintiffs’ works and was not transformative; 2) Google’s status as a commercial entity precludes a finding of fair use; 3) Google Books infringes on the Plaintiffs’ derivative rights in search and deprives them of the ability to license their works in search markets; 4) Google’s storage of digital copies expose a risk that Plaintiffs’ books will be made freely or cheaply available on the Internet; and 5) distribution of the digital copies to its library partners could cause Plaintiffs to lose copyright revenues if libraries make these copies available.
Fair Use Analysis
The Second Circuit begins its analysis by examining the purpose of copyright:
The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const. Art. I, §8, cl. 8. Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.
The court notes that the fair use doctrine was developed in order to support this purpose of supporting progress and that this doctrine was eventually codified under Section 107 of the Copyright Act of 1976. However, as confirmed by the Supreme Court, this statutory codification did not change the judicial doctrine of fair use.
Courts look at four fair use factors in evaluating whether a use is fair: 1) purpose and character of the use; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in relation to the whole; and 4) effect on the potential market.
First Factor: Purpose and Character
Turning to the first factor, the court focuses on determining whether the use is transformative while noting that a finding against transformativeness does not preclude a fair use finding. However, “transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”
The Second Circuit first examined whether the search function has a transformative purpose, quickly noting that in HathiTrust, it found that “the creation of a full-text searchable database is a quintessentially transformative use.” (As noted above, Judge Leval wrote the court’s decision. Judge Leval first coined the phrase “transformative use” in a law review article in 1990. Some have argued that the recent fair use jurisprudence strays from Judge Leval’s vision of transformative use because it has permitted the copying of entire works without transforming the works themselves. Judge Leval’s conclusion that Google’s creation of a full text database lays this criticism to rest.)
Turning to the differences between the Google Books search and HathiTrust, the Second Circuit considered whether the snippet view is also transformative. The court finds that
Snippet view adds important value to the basic transformative search function, which tells only whether and how often the searched term appears in the book. Merely knowing that a term of interest appears in a book does not necessarily tell the searcher whether she needs to obtain the book, because it does not reveal whether the term is discussed in a manner or context falling within the scope of the searcher’s interest.
The court notes that the snippet provides “just enough context” for a user to evaluate whether the book is responsive to her interests, but does not reveal enough to threaten the copyright interest.
Additionally, the court examines the case in light of Google’s status as a commercial entity, which also distinguishes this case from HathiTrust. While the Plaintiffs rely on dicta in a Supreme Court case that commercial uses are presumptively unfair, the Second Circuit states “while the commercial motivation of the secondary use can undoubtedly weigh against a finding of fair use in some circumstances, the Supreme Court, our court, and others have eventually recognized that the Sony dictum was enormously overstated.” The Supreme Court later ruled that Congress could not have intended a rule finding such a presumption and the Second Circuit has “rejected the contention that commercial motivation should outweigh a convincing transformative purpose and absence of significant substitutive competition with the original.” Ultimately, the Second Circuit concludes:
We see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.
Second Factor: Nature of the Work
The Second Circuit notes that the second factor “has rarely played a significant role” in a fair use determination. While courts have suggested that uses of factual works may be more favored than fictional ones, the court finds that the distinction between factual and fictional works is not dispositive in a fair use determination:
While each of the three Plaintiffs’ books in this case is factual, we do not consider that as a boost to Google’s claim of fair use. If one (or all) of the plaintiff works were fiction, we do not think that would change in any way our appraisal. Nothing in this case influences us one way or the other with respect to the second factor considered in isolation.
The court also notes that, in relation to the first factor, “the second factor favors fair use not because Plaintiffs’ works are factual, but because the secondary use transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute for the original.”
Factor Three: Amount and Substantiality Used
As in its decision in HathiTrust, the Second Circuit finds that the amount used was appropriate for the creation of a search database. Here, the court notes that,
Notwithstanding the reasonable implication of Factor Three that fair use is more likely to be favored by the copying of smaller, rather than larger, portions of the original, courts have rejected any categorical rule that a copying of the entirety cannot be a fair use. Complete unchanged copying has repeatedly been found justified as fair use when the copying was appropriate to achieve the copier’s transformative purpose and was done in such a manner that it did not offer a competing substitute for the original.
Thus, “[a]s with HathiTrust, not only is the copying of the totality of the original reasonably appropriate to Google’s transformative purpose, it is literally necessary to achieve that purpose.”
With respect to the amount used with respect to the snippet view, the court acknowledges that “enabling searchers to see portions of the copied texts could have determinative effect on the fair use analysis.” However, Google’s snippet view “does not reveal matter that offers the marketplace a significantly competing substitute for the copyrighted work.” The snippet view contains significant protections including limiting the size of the snippet to one-eight of a page, blacklisting of one snippet per page and one out of every page, providing no more than three snippets for each term searched and excluding certain books, such as dictionaries and cookbooks, from snippet eligibility. As a result, “a searcher cannot succeed, even after long extended effort to multiply what can be revealed, in revealing through a snippet search that could usefully serve as a competing substitute for the original.”
The blacklisting, which permanently blocks about 22% of a book’s text from snippet view, is by no means the most important of the obstacles Google has designed. While it is true that the blacklisting of 22% leaves 78% of a book theoretically accessible to a searcher, it does not follow that any large part of that 78% is in fact accessible. The other restrictions built into the program work together to ensure that, even after protracted effort over a substantial period of time, only small and randomly scattered portions of a book will be accessible. In an effort to show what large portions of text searchers can read through persistently augmented snippets searches, Plaintiffs’ counsel employed researchers over a period of weeks to do multiple word searches on Plaintiff’s book. In no case were they able to access as much as 16% of the text, and the snippets collected were usually not sequential but scattered randomly throughout the book.
[. . .] The fragmentary and scattered nature of the snippets revealed, even after a determined, assiduous, time-consuming search, results in a revelation that is not “substantial,” even if it includes an aggregate 16% of the text of a book. If snippet view could be used to reveal a coherent block amounting to 16% of a book, that would raise a very different question beyond the scope of our inquiry.
Thus, the amount used for both the search function and snippet view is appropriate.
Fourth Factor: Effect on the Market
The Second Circuit notes the importance of the fourth fair use factor which “focuses on whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire in preference to the original.”
With respect to the creation of a search database, the court again references its decision in HathiTrust, which found that search does not serve as a substitute for the original work.
With respect to the snippet views, the court found that this feature of Google Books does not harm the value of the original, due to the fact that snippets provide tiny fragments that are not continuous and, in the aggregate, amount to no more than 16% of a book. Thus, the snippet view “does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.” The Second Circuit acknowledges:
We recognize that the snippet function can cause some loss of sales. There are surely instances in which a searcher’s need for access to a text will be satisfied by the snippet view, resulting in either the loss of a sale to that searcher, or reduction of demand on libraries for that title, which might have resulted in libraries purchasing additional copies. But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4).
Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright. A snippet’s capacity to satisfy a searcher’s need for access to a copyrighted book will at times be because the snippet conveys a historical fact that the searcher needs to ascertain. For example, a student writing a paper on Franklin D. Roosevelt might need to learn the year Roosevelt was stricken with polio. By entering “Roosevelt polio” in a Google Books search, the student would be taken to (among numerous sites) a snippet from page 31 of Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981), telling that the polio attack occurred in 1921. This would satisfy the searcher’s need for the book, eliminating any need to purchase it or acquire it from a library. But what the searcher derived from the snippet was a historical fact. Author Goldberg’s copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980) (“A grant of copyright in a published work secures for its author a limited monopoly over the expression it contains.”) (emphasis added). Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. The fact that, in the case of the student’s snippet search, the information came embedded in three lines of Goldberg’s writing, which were superfluous to the searcher’s needs, would not change the taking of an unprotected fact into a copyright infringement.
Even if the snippet reveals some authorial expression, because of the brevity of a single snippet and the cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view, we think it would be a rare case in which the searcher’s interest in the protected aspect of the author’s work would be satisfied by what is available from snippet view, and rarer still—because of the cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view—that snippet view could provide a significant substitute for the purchase of the author’s book.
Thus, the Second Circuit concludes after evaluating all four fair use factors that Google’s creation of a searchable database and providing the public with snippet views is fair use and not an infringement.
The Second Circuit rejects the argument that Plaintiffs have a derivative right over the search and snippet view functions, stating that “there is no merit to this argument.” The court points out that copyright “does not include an exclusive right to furnish the kind of information about the works that Google’s programs provide to the public. For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.”
The court similarly dismisses the argument that Google Books harms the existence or potential for paid licensing schemes. While the Plaintiffs cite the Google Books Settlement agreement that was eventually rejected by the district court as evidence for a licensing market, the Second Circuit notes that the settlement would have allowed users to read substantial portions of the books and therefore distinguishable from the current project which “in a non-infringing manner, allow the public to obtain limited data about the content of the book, without allowing any substantial reading of its text.”
The court also finds that there is no unpaid licensing market because the snippets displayed are “arbitrarily selected snippet[s] of text . . . the snippet function does not provide searchers with any meaningful experience of the expressive content of the book. Its purpose is not to communicate copyrighted expression, but rather, by revealing to the searcher a tiny segment surrounding the searched term, to give some minimal contextual information to help the searcher learn whether the book’s use of that term will be of interest to her.” Thus, the court rejects the Plaintiffs’ arguments that Google Books infringes on their derivative rights.
Although the Plaintiff’s assertions that Google’s stored digital copies could pose risks if hackers accessed them is “theoretically sound, it is not supported by the evidence.” The court points out that Google’s scans “are stored on computers walled off from public Internet access and protected by the same impressive security measures used by Google to guard its own confidential information. As Google notes, Plaintiffs’ own security expert praised these security systems.”
Distribution to Partner Libraries
The Second Circuit also rejects the notion that Google’s distribution of digital copies to the participant libraries that submitted the particular work is infringement, pointing out that the library is only permitted to use the copy in a non-infringing fair use manner.
The libraries propose to use their digital copies to enable the very kinds of searches that we here hold to be fair uses in connection with Google’s offer of such searches to the Internet public, and which we held in HathiTrust to be fair uses when offered by HathiTrust to its users. The contract between Google and each of the participating libraries commits the library to use its digital copy only in a manner consistent with the copyright law, and to take precautions to prevent dissemination of their digital copies to the public at large.
In these circumstances, Google’s creation for each library of a digital copy of that library’s already owned book in order to permit that library to make fair use through provision of digital searches is not an infringement. If the library had created its own digital copy to enable its provision of fair use digital searches, the making of the digital copy would not have been infringement. Nor does it become an infringement because, instead of making its own digital copy, the library contracted with Google that Google would use its expertise and resources to make the digital conversion for the library’s benefit.
The court acknowledged that while libraries could make infringing uses of these copies, this outcome is “sheer speculation” and there is no evidence on the present record to hold Google liable as a contributory infringer based on such speculation.
The Second Circuit’s decision in the Google Books case is a strong affirmation of fair use and demonstrates the importance of the fair use doctrine in responding to new technological developments. The search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google. Additionally, Google’s digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.
The Authors Guild plans to appeal the case to the Supreme Court of the United States, though it is far from clear whether the Supreme Court would grant certiorari in this case. In its litigation with HathiTrust, the Authors Guild decided to settle the preservation issue (the sole outstanding issue after the Second Circuit’s ruling in favor of fair use for the creation of a full-text searchable database and creation of accessible formats for those who are visually impaired or print disabled) and declined to pursue an appeal.
On July 8, 2014, the Library Copyright Alliance filed an amici brief in the Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.
The brief notes that GBS has become an essential research tool for LCA members and includes numerous examples and quotations—both in the text of the brief and accompanying appendix—from librarians explaining the value of the snippet display provided by Google. The snippet display allows librarians and researchers to identify materials that are hard to find, conduct research, developing curricula and collections, make determinations on whether to request particular books through interlibrary loans, and checking citation.
The snippet display is a critical function that makes GBS a valuable research tool yet does not substitute for the full text, displaying only three short snippets in response to a query. The brief notes that the Appellants in the case negotiated and agreed to a settlement (ultimately rejected by Judge Chin, leading to this continuing litigation) which would have allowed Google to provide a free “Preview” service that would have allowed display of up to twenty percent of the book’s text—far more than the GBS snippet display. The brief points out that “If display of 20 percent of a book did not cannibalize sales of the book, then surely display of a few snippets of a book would not do so either.”
The third section of the brief discusses the relationship between Section 108 and fair use, addressing the argument made by the amici for Authors Guild . The brief points out that the Second Circuit’s own ruling just a month prior in Authors Guild v. HathiTrust rejected the argument that the existence of Section 108 forecloses reliance on fair use. Section 108 not only includes an explicit savings clause, but the legislative intent clearly demonstrates that specific exceptions codified in the Copyright Act “do not limit the availability of fair use for conduct that does not fall within its scope.” Legislative history in both the Senate and the House discuss the relationship between Section 108 and fair use, noting that Section 108 was designed to give libraries a safe harbor and rights in addition to fair use.
Finally, the brief notes that the copies Google made available to partner libraries constituted fair use. Quoting the district court, the brief points out that “the purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.” Even if the Second Circuit evaluates Google’s purpose, rather than the libraries’ purpose, the brief points out that GBS did not affect the market because libraries would not have paid licensing fees to digitize books in their collections; libraries do not have the budgets to pay for digitization licenses for legacy materials nor is there an efficient mechanism to pay for such licensing. The brief emphasizes that a potential market for extended collective licensing agreements are speculative and do not constitute existing or potential traditional markets.
In a powerful affirmation of the value of research libraries, Judge Denny Chin today ruled that Google’s digitization of millions of books from university library collections was a fair use. Chin cites the Library Copyright Alliance amicus brief throughout his opinion to support a fundamental proposition: that the Google digitization project and the resulting uses are “invaluable” to society at large, and harmless to authors. Indeed, digitization and search give “new life” to books that would otherwise have been “forgotten in the bowels of libraries.” Well, okay, libraries could probably have lived without that last part.
What lessons are there in this decision? Here are a few takeaways:
- While we still await a decision in the HathiTrust case, it can’t hurt that Judge Chin, who now sits on the Court of Appeals for the Second Circuit, wholeheartedly endorses Judge Baer’s reasoning in that case, and finds expressly that all of the libraries’ uses of the Google scans are fair. After all, the Guild tried to sue Google not only for its uses of the scans, but also for sharing scans with research library partners and contributing to any infringement the libraries may have committed. Chin rejects those claims decisively, relying on HathiTrust and endorsing explicitly all of the uses HathiTrust members have made: preservation, search, and access for the print-disabled. Chin even quotes this wonderful passage from Judge Baer, which always bears repeating:
“I cannot imagine a definition of fair use that would not encompass transformative uses made by [HathiTrust] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].”
In other words, today’s opinion is the strongest possible endorsement of library uses, as well as of Google’s uses, and it shores up Judge Baer’s opinion in that regard.
- Amicus briefs really matter. Judge Chin relies on the LCA brief for core pieces of the opinion, including his finding that the Google project has significant benefits for the public (including libraries, researchers, the print-disabled, and more), and that those benefits are generally also favorable for authors, whose works are found and acquired by libraries and others by means of Google Book Search. The amicus brief filed by Digital Humanities Scholars is also crucial in helping Judge Chin explain the benefits of the book database for research.
- The decision is a victory not only for transformative, non-consumptive search, but also for serving “traditionally underserved” libraries and their users, including disabled patrons.
- It is time for the Authors Guild and other rightsholders to wise up and focus their energies on more productive pursuits. Years and years of litigation, millions in legal fees, and what have they got to show for it? It is beginning to look like individual authors have been sold a bill of goods by their leadership and by the lawyers that have been representing them in these cases. There is no pot of gold at the end of these lawsuits, and the research tools they’re trying to kill are their best hope of finding an audience. It is time for Authors Guild members, and for all authors who have supported this strategy, to ask themselves whether all this has been worth it. The Guild’s leadership has already said it plans to appeal, but perhaps it is not too late for members to suggest otherwise. The Second Circuit Court of Appeals is already deliberating on the HathiTrust case, and will surely issue an opinion before this case can be heard. The same panel hearing that case—Judges Leval, Cabranes, and Parker—will hear any appeal of this one. There is little reason to believe those judges will reverse Judge Baer in Hathi, and then the Guild will find itself once more arguing that what Google did was rank piracy even though its library partners were core fair users. The writing is on the wall and it’s time to back down.
Those are my main impressions and takeaways at this point, though I’m sure this is an opinion we’ll be discussing for weeks, months, and perhaps years to come.
Brandon Butler is the Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic at American University, Washington College of Law.
This morning a panel of judges from the Federal Court of Appeals for the Second Circuit issued a short but significant opinion in the hotly-contested Google Books litigation. In less than 5 pages, the court reverses district court judge Denny Chin’s decision to certify the Authors Guild’s class action lawsuit against Google. The appeals court ordered Judge Chin to first consider Google’s fair use defense, as the success of that defense would render the question of whether the suit should go forward as a class action moot. The court also said that sorting out the issues involved in a fair use determination would also help sort out whether a class action proceeding is appropriate. The appellate court also expressed sympathy for Google’s argument that the Guild is not representative of most authors, citing Google’s evidence that many, perhaps most, authors benefit from Google Book Search and would not want the Guild to prevail in its suit. The court did not decide that issue, though, and it may resurface later.
Professor James Grimmelmann, an avid commentator on the lawsuit, has suggested that the decision implies the court thinks the fair use outcome will likely favor Google. I’m not sure I would go that far. It may just be that the court thinks proceeding as a class action raises the stakes so substantially that it makes sense to explore any alternative that could potentially end the suit before that dramatic escalation takes place.
Regardless of whether this decision telegraphs good vibes about the fair use outcome, it’s a great precedent for future fair uses. It means that fair use cases will be tried more quickly and the stakes of the litigation will not be raised to the extraordinary level of a class action without first reaching the question of fair use. This is, I think, another nail in the coffin of the myth that fair use is just the right to hire a lawyer. Together with the attorneys’ fees awards in GSU and other fair use cases, the early decisions in cases like the South Park “What What” parody, and even the Prince “Let’s Go Crazy” case that says rightsholders have to consider fair use before issuing DMCA takedowns, this decision is creating a series of procedural protections that make fair use a real user’s right.
UPDATE: The full text of the opinion is here.
On August 1, 2012, ARL joined other members of the Library Copyright Alliance (LCA) (the American Library Association, Association of Research Libraries and Association of College and Research Libraries), as well as the Electronic Frontier Foundation (EFF), to file a friend of the court brief (PDF) in Authors Guild v. Google, Inc., a lawsuit in which authors allege that Google violated copyright by scanning books to create Google Book Search (GBS), a search tool similar to its Internet search engine. The LCA/EFF brief defends GBS as permissible under the doctrine of fair use, a flexible right that allows copying without payment or permission where the public benefit strongly outweighs the harm to individual rightsholders.
The LCA/EFF brief argues the following main points: that Google Book Search is tremendously beneficial to the public, that this public benefit tilts the analysis firmly in favor of fair use, that a legislative “fix” is both unnecessary and unworkable, and that the Authors Guild should not be permitted to shut down Google Book Search after encouraging public reliance on the tool for years.
In addition to these general arguments, the LCA/EFF brief incorporates stories contributed by librarians of all types demonstrating the ways in which GBS is an essential tool for librarians, enables new forms of research, and even benefits authors. Librarians know a thing or two about searching for books, and we know that GBS is just the latest in a long tradition of legitimate and fair tools to help research, teaching, and learning.
The members of LCA have long had a commitment to supporting libraries’ interest in the Google Book Search settlement agreement. For more, including past guides to understanding the settlement, see the ALA Washington Office GBS blog at http://wo.ala.org/gbs/ and the ARL Google Books resource page at http://www.arl.org/pp/ppcopyright/google/index.shtml.
Copyright law can seem so confusing, with simple questions like “when will the song ‘Happy Birthday’ enter the public domain?” prompting elaborate research projects that still do not settle things once-and-for-all. It’s so nice, then, when you find clear and unambiguous statutory language that is right on point and provides a simple answer to your question.
Today is our lucky day, because we are setting out to answer one of those rarest questions: one with a clear and unambiguous answer in the Copyright Act. Namely:
Does anything in Section 108 of the Copyright Act in any way affect the right of fair use as provided by Section 107?
It’s an important question, because libraries have certain specific rights under Section 108 that might be seen as preempting any more general rights they have under Section 107. If libraries want to use copyrighted materials in ways that are not covered by Section 108, is fair use available as a rationale to justify those uses? To put a finer point on it: Do libraries have fair use rights? Hmm.
Let’s do a quick search of Title 17…
AH-HA! The statute gives us a clear and unambiguous answer at Section 108(f)(4):
“Nothing in this Section in any way affects the right of fair use as provided by section 107.”
So libraries (and anyone else) have the same fair use rights under Section 107 as they would have if Section 108 did not exist. The scope of those rights is still up for debate (though I can recommend some resources that will help sort things out), but we know one thing for sure: fair use is completely separate from Section 108. Settled beyond rational dispute, right? You’d think so.
In what seems like a Swift-ian satire masquerading as a legal brief, the Authors Guild argues that, in fact, despite 108(f)(4), everything in Section 108 comprehensively affects the right of fair use as provided by Section 107, at least for libraries. As they put it,
“Congress included these rules [in Section 108] to carefully delineate the boundaries of fair use in the context of library copying.”
The three pages or so that the Guild dedicates to making this Orwellian move do very little to overcome an informed reader’s incredulity. Indeed, Google Books litigation guru James Grimmelmann calls it a clever litigation trick but suggests even the Guild doesn’t really believe what it’s selling.
Canons of statutory interpretation
The first few arguments the Guild makes are based on general canons of statutory interpretation, like “the specific governs the general.” As any lawyer will tell you, canons of interpretation are what you turn to when there’s some ambiguity in the statutory text itself. If there were an open question about how Congress meant 108 and 107 to be interpreted, we might look to these general rules as a way to break the ambiguity. But there is no such ambiguity. Congress has said explicitly how courts are to use 108 as they determine a library’s (or anyone else’s) rights under Section 107: not at all. Maybe in a world without 108(f)(4) you could say that 108 is “specific” and 107 is “general,” and so 108 ought to trump. But we are not in that world, and have not been there for many decades. In the real world, Congress has determined that the specific provisions in 108 do not trump the general right described by Section 107, just as specific federal laws do not trump the general First Amendment right of free expression. 108(f)(4) settles this question, making recourse to general rules of thumb a subversion of clear Congressional intent. Strike 1 for the Guild.
Copyright Office Reports
Next, the Guild relies on a report written by the Copyright Office in 1983. In that report, the Office opines on the proper scope of library fair use rights in light of Section 108. Leaving aside the fact that to opine in this way is already in tension with the clear statutory language, the Guild’s invocation of this report is not persuasive for several reasons:
- There is no ambiguity in the statute. Again, expert opinion, even expert agency opinion, is only useful if you have a statute that is unclear. That is not the case, here. The statute could not be clearer. There is no reason to consult any experts, not even the Copyright Office, and certainly not the Copyright Office circa 1983.
- Fair use law is made by the courts, not the Copyright Office, and it has evolved considerably since 1983. It is clear beyond dispute that when Congress ‘codified’ fair use in 1976, it was endorsing the continuing evolution of the doctrine in courts. The statutory factors are open-ended and flexible, and the courts have not been timid in deploying the doctrine in new and exciting ways over the last three decades. The Copyright Office in 1983 could not in its wildest dreams have anticipated the kinds of practices that have since been blessed as fair use, or the challenges that 21st Century libraries would face and the tools they would devise to meet those challenges.
- Courts are not bound by Copyright Office reports. That’s not always true. Some federal agencies are entitled to what is called “Chevron deference,” which means they are empowered to interpret the law in their area of specialty, and courts have to follow the interpretations those agencies make even if the judges disagree (unless the agency has completely gone off the deep end). The Copyright Office is not one of these specially-empowered agencies. Instead, courts must show them only “Skidmore deference,” i.e., courts will defer to them to the extent that their arguments are persuasive. In other words, courts show these agencies no deference at all; they make their arguments just like everyone else, and the court can take or leave them. That doesn’t stop the Guild from trying to say that the Office gets “deference,” shoving Skidmore into a footnote, perhaps hoping that the Judge will not read this brief carefully.
- It’s clear even from the excerpts in the Guild’s own brief that the Copyright Office in 1983 did not say that Section 108 is an exhaustive delineation of library fair use rights. Rather, the Office suggests that some stakeholders (though not the libraries) believed in 1976 that Section 108 allowed practices in excess of fair use, which does not necessarily entail that it comprehends all that fair use would allow. Indeed, as professor Grimmelmann points out, the 1983 Report says fair use will “often” be unavailable in cases beyond the limits of 108; it does not say that fair use will “always” be unavailable.
To the extent that the Report seems to take a dim view of relying on fair use for large, systematic library projects, it is worth emphasizing the Report predates the advent of the Internet, of digital search algorithms, of cloud computing, and of a host of new practices that involve systematic large scale copying that courts have blessed as fair use. Courts are the ones empowered by the Copyright Act to determine the evolving bounds of fair use, and they have found copying that is very similar to that at issue here to be fair. They have done so repeatedly, and with growing certainty, and they have endorsed these practices when engaged in by commercial, for-profit actors. The Guild would have us believe that libraries whose mission is to promote teaching, learning, and scholarship have fewer fair use rights than billion dollar companies whose mission is to maximize advertising revenue. On the contrary, libraries should follow the lead of these companies in areas like web archiving.
The DMCA Savings Clause
Here I will just defer to Professor Grimmelmann, who untangles this knotty issue very effectively in his own blog post on the brief:
And then there is the brief’s discussion of another Copyright Act fair use saving clause, in Section 1201 of the DMCA:
Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
In the famous DeCSS case Universal City Studios v. Corley the Second Circuit held that fair use was no defense to DMCA anti-circumvention liability. But—as the Second Circuit explained but the Authors Guild doesn’t—that was because the DMCA creates an independent form of circumvention liability that is different from infringement liability:
In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.
That is, fair use as a defense to copyright infringement remains completely intact under the DMCA. Unlike the DMCA, however, Section 108 does not create new forms of liability, so that “violation” of it is not some new exotic action to which fair use does not apply. Failure to qualify for Section 108, per the text of the savings clause, simply kicks one back into the usual fair use balancing test.
So, there you have it. The statute is clear, the policy question is easy, and the Guild is making a series of hail Mary arguments to try to avoid a long and (hopefully) fruitful inquiry into what fair use really means for libraries. Jonathan Band has already explored this substantive area, and his analysis is quite compelling.
The Copyright Office (CO) announced its priorities for the next two years yesterday, including several items of interest to research libraries. This blog post will walk through some of the highlights; the full document is here.
Report on Mass Digitization Coming (Very) Soon
Of all the goals outlined in the CO’s report, the one with the shortest time horizon is a preliminary analysis of the issues surrounding large-scale book digitization. The CO indicates that its analysis will be posted sometime in October 2011 (i.e., in the next few days).
As the CO’s mass digitization site‘s current contents show, this work is an outgrowth of the Google Books litigation, in which the CO was a highly visible participant. Then-Register Marybeth Peters may have coined the most oft-repeated phrase in the oral arguments when she described the proposed “opt-out” settlement as “turning copyright on its head.” Peters has continued her work in support of “opt-in” solutions in her retirement, taking a position on the Board of Directors of the Copyright Clearance Center.
Mass digitization presents a host of unique problems that have not been addressed in previous efforts to sort out smaller-scale uses of library materials, especially orphan works. The one-at-a-time diligence that past orphan proposals have envisioned simply do not scale to the thousand- or million-volume level.
The CO says its analysis will include an evaluation of various solutions based in collective licensing (voluntary, collective, extended, and statutory). Recent conflicts in Canada, a close look at Norway’s regime, proposals in Europe, and a look at our own statutory licensing regimes for satellite TV all suggest that these types of solution can have significant disadvantages for libraries. It will be interesting to see what the CO makes of these issues.
Section 108, again.
In 2008, a study group comprised of representatives from the rights holder communities as well as libraries, archives, museums and other user groups issued a Report on the many shortcomings of the current specific exception for libraries and archives. While the Report expressed a consensus that Section 108 had not kept pace with the changing needs of beneficiary institutions (e.g., it does not deal adequately with needs associated with ‘born-digital’ works), the consensus did not reach many specific recommendations for changing the statute. Parties simply could not agree. The CO suggests that the Google Books litigation was also a factor.
The CO says it will “formulate a discussion document and preliminary recommendations” on the issues raised by the 108 Report. Given the failure of the stakeholders to come to consensus, we should watch closely to see how the CO resolves the tensions surrounding this important issue.
Another issue raised by the Google litigation, and by the new lawsuit against HathiTrust and its library partners, is the fate of ‘orphan works.’ ARL has worked with other stakeholders, including the CO, to find an acceptable legislative solution to this issue, but those negotiations left off in Congress at the very limit of what would be feasible for libraries. It is not clear that revisiting this issue in the legislative arena will give libraries a solution that is preferable to the strong fair use arguments already available to support library projects. Indeed, members of the Legal Issues workstream of the Digital Public Library of America reported at last week’s plenary that even its ambitious plans don’t include pushing for legislative change, as it makes more sense to work with what we have than to gamble that Congress will improve things.
The CO has already issued a comprehensive report on this issue, and legislative language already exists, so the CO is wise to refrain from announcing any specific work product on this question. Instead, they will “continue to provide analysis and support to Congress.”
- The CO is in the midst of its triennial DMCA rulemaking, in which it considers classes of works that should be exempt from the digital locks provisions of the Digital Millennium Copyright Act. In the past, these exceptions have focused on uses in academic settings, and ARL will continue to work to support useful rules in this area.
- The CO will be issuing its report on Pre-1972 Sound Recordings in December. In our comments on this issue, ARL has asked the CO to highlight fair use.
- The CO mentions that it has weighed in on the issue of “Rogue Websites,” without specifically endorsing the approaches that have been taken by the bills introduced on the issue. There are significant free speech concerns associated with those bills.
- The CO highlights its work to digitize and make accessible its records of copyright registrations. This is an important corollary to the orphan works and mass digitization problems, as it would make it much easier for libraries to determine whether and when copyright terms might have expired.