Second Circuit Affirms Google Books' Protection as Fair Use | Practical Law

Second Circuit Affirms Google Books' Protection as Fair Use | Practical Law

In Authors Guild, Inc. v. Google Inc., the US Court of Appeals for the Second Circuit affirmed the district court's holding that Google Inc.'s use of copyrighted works for its Google Books project was fair use under the Copyright Act.

Second Circuit Affirms Google Books' Protection as Fair Use

Practical Law Legal Update 2-619-5745 (Approx. 3 pages)

Second Circuit Affirms Google Books' Protection as Fair Use

by Practical Law Intellectual Property & Technology
Published on 20 Oct 2015 • USA (National/Federal)
In Authors Guild, Inc. v. Google Inc., the US Court of Appeals for the Second Circuit affirmed the district court's holding that Google Inc.'s use of copyrighted works for its Google Books project was fair use under the Copyright Act.
On October 16, 2015, in Authors Guild, Inc. v. Google Inc., the US Court of Appeals for the Second Circuit affirmed the US District Court for the Southern District of New York's holding that Google Inc.'s use of copyrighted works for its Google Books project was fair use under the Copyright Act ( (2d Cir. Oct. 16, 2015)).
In 2005, The Authors Guild and three individual authors of copyrighted books sued Google for copyright infringement based on its Google Books project and Google responded by asserting a fair use defense under Section 107 of the Copyright Act (17 U.S.C. § 107). The district court ultimately ruled that Google's use of copyright works for its Google Books project was a fair use under Section 107.
Through its Library Project and Google Books project, Google maintains a database of scanned books, some under copyright and some in the public domain, and indexes each word or phrase in these books, which allows a user to search the full text of all books in the database. When the user searches Google Books, Google returns a list of books that contain the search term and shows snippets of text that include the search term. However, Google prevents users from seeing a complete copy of any particular book.
On appeal, the plaintiffs argued that Google Books did not constitute fair use because:
  • Google's digital copying of entire books and allowing users to read portions through the snippets function was:
    • not a transformative use; and
    • provided a substitute for plaintiff's works.
  • Even though Google did not charge for its service and did not use advertising to generate revenue, it was ultimately driven by a profit motive and derived revenue through its dominance of internet searching, which includes the books project.
  • Google's actions infringed plaintiffs' derivative rights in search functions and deprived plaintiffs of revenue or benefits from licensed search markets.
  • Google's storage of digital copies of copyrighted works exposed the plaintiffs to a risk of hackers making the books freely or cheaply available on the internet.
  • Google's distribution of digital copies to libraries was not a transformative use and created a risk of loss of copyright revenues for plaintiffs.
The Second Circuit rejected plaintiffs' arguments and upheld the district court decision, stating that:
  • Both Google's creation of digital copies to provide a search function and its snippet function are transformative because:
    • they increase public knowledge about plaintiffs' books; and
    • they do not serve as a substantial substitute for the matter protected by plaintiffs' copyrights.
  • Google has not usurped plaintiffs' opportunity to access paid and unpaid licensing markets for substantially the same functions as Google provides because:
    • the licensing markets involve very different functions than those that Google provides; and
    • an author's derivative rights do not include an exclusive right to supply information of the type provided by Google about the author's works.
  • Google's overall commercial profit motive does not preclude a finding of fair use in this instance because its use and purpose is transformative and does not constitute a substitute for the copyrighted works.
  • Plaintiffs have not provided sufficient evidence to rebut Google's showing that it protects its digital copies from hacking.
  • Google's act of providing digital copies of copyrighted works to libraries for non-infringing uses is non-infringing and speculation on how the libraries may use the copies for infringing purposes is not enough to make Google a contributory infringer.
For more information on the background of this case and the lower court's decision, see Legal Update, Google Books Protected as Fair Use: SDNY.
Update: On April 18, 2016, the US Supreme Court declined the Authors Guild’s petition for certiorari ( (S. Ct. Apr. 18, 2016)).