Google Books and Fair Use Policy

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INTRODUCTION

As early as 3

rd

century BC, the great library of Alexandria in the Egyptian Ptolemaic Dynastyrepresented the human need for compiling and treasuring pubic knowledge and culture.1

More than anything else, it signified the dream of having universal knowledge and wisdom

found in a single place. The modern day embodiment of that spirit would possibly be the

Google Books Project. The great innovators behind Google, Larry Page and Sergei Brin,

have ventured in digitizing books from all over the world, and making them available for

access in a single portal. In order to do so, Google has undertaken in scanning the books,

copying them and making them available, the extent of which depends on the publishers

consent. However noble the idea may be, this action has brought Google under an array of

lawsuits with respect to mass copyright infringement.

Whats interesting about this case is that unlike cases of piracy versus production houses this

is actually a case between good guys2- on one hand the authors and on the other, the worlds

greatest innovators willing to display the authors works and creations. While discussing the

predicament, we shall note the implications and the extent of the fair use defence sought by

Google, as well as the underlying infringement issues charged.

HOW GOOGLE BOOKS WORKS

The goal of the Google books project is to make available via the Internet a searchable

database of books using the Google search engine technology to provide storage, indexing

and retrieval of digital texts scanned from printed volumes.3This process involves scanning

the books and providing full access to the books in public domain and snippets of the books

still in copyright, after the copyright owners consent.

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Under this system,

Google has two programs with respect to treatment, the Google Book Search Publisher

Program and the Google Book Search Library Project. For the books published under the

Google Book Search Publisher Program, a user may perform full-text searches on its content

1Manguel, Alberto, The Library at Night. New Haven: Yale University Press, 2008, p. 26.

2See, e.g., A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004 (9th Cir. 2001);In re Aimster Copyright

Litigation 334 F.3d 643 (7th Cir. 2003);Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 (2005) S. Ct

2764.3About Google Books, GOOGLE, http://books.google.com/googlebooks/history.html

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and view a chapter excerpt (typically 3-7 pages). Apart from this, the books table of

contents, copyright notice, bibliographic information and external links to buy the books are

also provided. The other, more interesting project, Google Book Search Library Project,

involves agreements with libraries of top universities of the world, and scanning their books

in entirety. So when a user types the search words, Google Books would provide the number

of times that keyword has been used in the book, along with 3 snippets with 2-3 sentences

each, along with other information such as contents, bibliography, external link to buy the

books. It is to be reiterated here that only a tiny fraction of the books contents is displayed to

the user. However, this is the key issue over which Google has had to face severe litigation.

THE LAWSUIT

The case of Authors Guild v. Google5dealt with the association of writers suing Google for

mass copyright infringement by obtaining books, scanning them and displaying snippets

based on the search command. The lawsuit accuses Google of "reproducing for itself a copy

of those works not in the public domain" without having obtained authorisation from the

holders of the copyrights in the works and "reproducing digital copies for its own

commercial use and for the use of others" on its commercial website. 6

Another lawsuit was filed by a group of publishers including McGraw Hills, Pearson,Penguin (USA), Simon & Schuster and John Wiley, seeking not damages, but an injunctive

relief against the operation of the Library Project and an order requiring Google to delete

copies of their works from its servers7, on the grounds of an adverse impact on the potential

market of the Publishersbooks.

Initially, instead of entering into litigation right away, Google posted a blog entry in response

to the charges. An extract is produced hereunder:

We regret that this group chose to sue us over a program that will make millions of

books more discoverable to the world - especially since any copyright holder can

exclude their books from the program. Whats more, many of Google Prints chief

beneficiaries will be authors whose backlist, out of print and lightly marketed new

5

Authors Guild, Inc. v. Google Inc.,770 F.Supp.2d 666 (S.D.N.Y. 2011)6Authors Guild Complaint, http://scrawford.net/courses/AuthorsGuildGoogleComplaint.doc , paras 3 and 5

7Publishers Complaint, http://www.publishers.org/press/pdf/40%20McGraw-Hill%20v.%20Google.pdf


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titles will be suggested to countless readers who wouldnt have found them

otherwise8

DEFENCE UNDER US COPYRIGHT LAW

Google based its defence on the ground that its actions are permissible under the scheme of

exceptions in the US Copyright Law, specifically fair use. In terms of copying the books and

displaying snippets, without the express authorization from the exclusive rights holders, it is

of little doubt that Google has indeed implicated the exclusive rights of the copyright owners.

These rights include, in the case of literary works, the right to make and distribute copies of a

work and the right to display a work publicly.9 Furthermore the argument that the copying is

de minimis would almost certainly fail.10 Google's actions, therefore, can only be justified if

they fall within one of the exceptions to copyright infringement.

Section 107 of the US Copyright Act deals with fair use. This exception permitscourts to

avoid rigid application of the copyright statute when, on occasion it would stifle the very

creativity which the law is designed to foster.11 Section 107 provides a four factors in

assessing the applicability of the exception:12

(1) the purpose and character of the use, including whether such use is of a commercial

nature or is for non-profit 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.

APPLICATION

In applying the four fair use factors to Google's use, the court should find: (1) that Factor 1

favours Google because, despite being commercial, Google's use is highly transformative and

of great public benefit; (2) that the second factor favours neither party strongly but may lean

8 Susan Wojcicki, 'Google Print and the Author's Guild' (20 September 2005) at

http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html917 U.S.C. 106(1) and (5)

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See Elisabeth Hanratty, 'Google Library: Beyond Fair Use?' (2005)Duke Law & Technology Review 0010, at 4-711Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, at 1399 (9th Cir. 1997)

1217 U.S.C. 107


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Google Books and Fair Use Policy

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