Google Books: A Test of Transformative Use

The Second Circuit recently affirmed a decision from the Southern District of New York that Google Books is fair use of copyrighted material. Judge Chin at the district court pointed to a decision on a similar issue in Authors Guild v. HathiTrust, but as has been discussed on MTTLR.org before, Google’s use of scanned books differs from the use in HathiTrust in two important ways.

First, Google derives ad revenue from the use of its search engine to find books, whereas HathiTrust used the scans for educational purposes. At one time a commercial purpose was enough to create a presumption that a use of copyrighted material was unfair, though subsequent caselaw has lessened how decisive this factor is. Second, Google Books provides a “snippet view” of scanned books so users can see in what context the book uses their search terms. Google’s snippet view creates the concern that users might get all the information they need from a small preview, and would therefore not need to buy a book they otherwise would have.

The Second Circuit’s opinion was written by Judge Leval, the author of an influential article on modern fair use law.  In it, he responds to the ambiguity of the law at that time by introducing the idea of transformative use, or the degree to which the use of copyrighted material serves a different purpose than the original work, as a standard for whether the use is fair. He arrives at this standard by examining the statutory tests for fair use informed by the additional tests that courts have developed in the course of applying the statute.  With the transformative use standard, Judge Leval aimed to create something that can be applied with consistent results and achieve the most good. In his opinion, Judge Leval calls Google’s use of the scanned books “highly transformative.”  By applying it in a high profile case like this, Judge Leval further entrenches the transformative use doctrine and deemphasizes the statutory factors.

Though this decision will undoubtedly be unpopular with some groups, Judge Leval likely believes that a flexible and broad fair use tradition will only enliven the exchange of ideas and even the market for books.  He reminds us that “[w]hile authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public.”  Given how much we have come to rely on electronic searching over card catalogs, a service like Google Books probably does more good than harm by helping researchers find books and ideas they are looking for more quickly.

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Joseph Venier is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University  Michigan Law School class of 2017.

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