On April 18, 2016, the US Supreme Court denied a request to hear an appeal by The Authors Guild and several individual authors claiming that Google violated copyright law by its unauthorized digitizing and indexing of millions of books for its Google Books online library. Consequently, the decision of the US Court of Appeals for the Second Circuit, finding that Google's uses constituted fair use, was left in place (The Authors Guild, Inc. v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)).

Despite being one of the most commonly-known and important principles of copyright law, this latest development illustrates how counseling on the fair use doctrine remains challenging. The fair use doctrine was established as a limitation to the complete control of works by copyright owners, with the intent to encourage new forms of expressions and protect the public interest in having widespread access to works of authorship (see Practice Note, Copyright: Overview: Exclusive Rights and Statutory Exceptions). Fair use, as codified in Section 107 of the Copyright Act of 1976 (Copyright Act), sets out only guidelines, but does not establish specific criteria for determining whether a use qualifies as fair (17 U.S.C. § 107).

The preamble of Section 107 provides examples of purposes likely to support a finding of non-infringing fair use, including uses for:

Section 107 also sets out four factors to guide courts in determining whether a use is fair:

The statutory framework is ambiguous as the analysis is to some degree subjective. Different courts faced with similar fact patterns have made conflicting determinations as to whether a use qualifies as fair.

In the Google Books litigation, the authors in their petition for certiorari alleged that the Second Circuit conflicted with prior Supreme Court and other circuit court decisions. In assessing the first factor, plaintiffs argued that the Supreme Court, in Campbell v. Acuff-Rose Music, Inc. and as similarly held by the US Court of Appeals for the Third, Sixth, and Eleventh Circuits, determined that to be "transformative," the use of the copyrighted work must produce "new expression, meaning, or message" (510 U.S. 569, 578-585 (1994)). By contrast, the US Court of Appeals for the Second, Fourth, and Ninth Circuits have found a use to be transformative, even with verbatim copying of works, where it had a different function, character, or purpose than the original (Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97 (2d Cir. 2014); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009)); and Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19 (9th Cir. 2003).

The fair use doctrine is made even more amorphous because the four factors do not constitute an exhaustive list of considerations for the courts. Courts have considered certain other facts or circumstances as being relevant to their fair use analyses, for example:

In The Authors Guild, Inc. v. Google, Inc., the Second Circuit found that Google's search and snippet views functions contribute substantial benefits to public knowledge and that the use itself provides a significant benefit to the public, which, for among other reasons, supports a finding of fair use (804 F.3d at 207).

By contrast, the plaintiffs argued that this approach remakes the fair-use doctrine by empowering "judges to approve any reuse of copyrighted works that those judges deem socially beneficial." The plaintiffs further warned that adopting this approach renders the boundaries of copyright protection "both unknowable and constantly expanding." (The Authors Guild, Inc. v. Google, Inc., at *14-*15.)

Fair use may be a longstanding principle of US copyright law, but a lack of bright line test means that the doctrine is and has been, from its inception, ever-evolving and constantly expanding to address, among other developments, technological advances. Consequently, counsel must gain an in-depth understanding of the fair use doctrine and varied court decisions to advise clients appropriately.

For more information about the key considerations of the fair use doctrine, including practical guidance for counseling clients on fair use and application of the fair use doctrine in a rapidly changing technology landscape, see Practice Note, Copyright Fair Use.

For more information on the background of the Google Books case, see Legal Update, Second Circuit Affirms Google Books' Protection as Fair Use.