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...