804 F.3d 202
In 2004 Google began the Library Project by entering bilateral agreements with major research libraries including the University of Michigan, Harvard University, Stanford University, and the New York Public Library.1 Under the agreements the libraries selected books from their collections for Google to scan, after which Google created digital copies, extracted machine-readable text, and built an index.2
The three individual plaintiffs are Jim Bouton, author of Ball Four, Betty Miles, author of The Trouble with Thirteen, and Joseph Goulden, author of The Superlawyers.3 Each owns a copyright in a book that Google scanned without permission and made available for search and snippet view.4 The Authors Guild joined as a plaintiff seeking relief on behalf of its members.5
Google permits each participating library to download digital copies of the books it submitted through the GRIN interface, subject to contractual requirements that the libraries comply with copyright law and prevent public dissemination. When a user enters a search term on the Google Books website the service returns a list of responsive books together with bibliographic information and, for in-copyright works, up to three snippets of text.6 Each snippet is ordinarily one-eighth of a page.7 Google blacklists one snippet per page and one full page out of every ten, disables snippet view for dictionaries and cookbooks, and honors rights-holder requests to exclude entire books. No advertising appears on the search results page and Google receives no payment when a user follows a link to purchase a book.8
Plaintiffs filed this action on September 20, 2005, in the United States District Court for the Southern District of New York as a putative class action alleging copyright infringement.9 After the district court rejected a proposed class-wide settlement in 2011, it certified a class in 2012. Google moved for summary judgment on its fair use defense and plaintiffs cross-moved.10 The district court granted Google’s motion in November 2013 and entered judgment dismissing the claims with prejudice.
Plaintiffs appealed. The Second Circuit provisionally vacated the class certification pending resolution of the fair use issue and, after briefing and argument, affirmed the district court’s judgment.11
Whether Google’s digitization of entire copyrighted books and display of snippets through its search function constitutes fair use?12
Under 17 U.S.C. § 107, fair use is determined by weighing four non-exclusive factors.13 The factors include the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.14 The factors include the nature of the copyrighted work.15 The factors include the amount and substantiality of the portion used in relation to the copyrighted work as a whole.16 The factors include the effect of the use upon the potential market for or value of the copyrighted work.17 These factors are explored, and the results weighed together, in light of the purposes of copyright to promote the progress of science and useful arts.18
Yes. Google's digitization of the plaintiffs' books to enable the search function is highly transformative because it allows users to identify books containing particular terms, a function not possible with the physical books.19 This adds a new purpose of facilitating research and data mining in ways the originals do not serve.20 Factor two is neutral because the works include both fiction and nonfiction yet the transformative purpose reduces its weight.21
Factor three favors fair use because copying the entirety is necessary for the search function while the snippets displayed are limited to one-eighth of a page with blacklisting and other restrictions preventing substantial revelation.22 Factor four favors fair use because the limited snippets do not serve as a market substitute and may even increase demand by aiding discovery, with no evidence of harm to sales or licensing markets for the originals.23
Google’s digitization and snippet display constitutes fair use.24
Whether Google’s commercial motivation precludes a finding of fair use for the Library Project?25
No. Although Google is a for-profit entity that may indirectly benefit from increased search dominance, its Library Project provides public access to search functions without charge or advertising.2930 This serves the copyright goal of promoting progress by making information about books available.31 The transformative purpose of enabling identification of books containing specific terms outweighs the commercial aspect, consistent with accepted fair uses such as news reporting and commentary that are routinely conducted for profit.32
Google’s commercial motivation does not preclude fair use.33
Whether the snippet view function infringes plaintiffs’ derivative rights to supply search functions for their works?34
Derivative rights under 17 U.S.C. § 106(2) extend to transformations that recast or adapt the original expressive content, such as translations or film adaptations.35 Derivative rights do not include an exclusive right to supply information about the work or limited contextual snippets that do not communicate protected expression in a meaningful substitute form.36
No. The snippet view supplies only minimal contextual fragments to help users evaluate whether a book meets their search needs.3738 It does not allow substantial reading of expressive content.39 Nor does it function as a substitute for licensed search markets that permit extensive viewing.40 Plaintiffs’ claimed derivative right to control such information functions finds no support in the statutory definition of derivative works, which focuses on re-presentation of protected expression rather than data about usage of terms.41
The snippet view function does not infringe plaintiffs’ derivative rights.42
Whether Google’s storage of digital copies exposes plaintiffs to an unreasonable risk of loss through hacking?43
No. Google stores the digital scans on servers walled off from public internet access and protected by the same security systems used for its own confidential information, measures that plaintiffs’ own expert acknowledged as top-notch.4647 No thefts from the Google Books corpus have occurred.48 Plaintiffs offer only general statements from SEC filings rather than evidence that a breach is likely or would result in release of specific works.49
Google’s storage does not expose plaintiffs to an unreasonable risk of loss.50
Whether Google’s distribution of digital copies to participating libraries constitutes infringement or contributory infringement?51
Distribution of digital copies to enable non-infringing fair uses by the recipient libraries is itself non-infringing when the libraries are contractually bound to comply with copyright law and prevent public dissemination.52 The mere speculative possibility of future misuse by libraries does not establish contributory infringement.53
No. Each library receives a digital copy only of books it submitted.54 It is obligated by agreement to use the copy solely in ways consistent with copyright law, including enabling the same search functions already held to be fair use.55 The possibility that a library might misuse the copy or fail to guard against hacking remains speculative on the record, providing no basis to hold Google liable as a contributory infringer.56
Google’s distribution to libraries does not constitute infringement or contributory infringement.57