This week the Southern District of New York has widened the door for “for-profit” tech companies to stretch the boundaries of copyright protection by ruling in Google’s favor on summary judgment in the Author’s Guild v. Google class action. While the decision proceeds through a straight-forward fair use analysis, it joins a very small set of cases that hold that certain types of copyright infringement, even where the copying is motivated by for-profit interests, can constitute a fair use. The Author’s Guild v. Google Inc., 05-cv-8136 (DC) (S.D.N.Y., November 14, 2013).
The Author’s Guild sued Google back in 2005 for copying several million copyrighted works as part of its Google Books scan and search project. After several years of back and forth on procedural issues (there was a settlement that the Court tanked, then there was a class action certification the the 2nd Circuit sent back), Google moved for summary judgment on the basis of the fair use doctrine. Under fair use, certain unauthorized copying of works is not an infringement if done to fulfill the purposes of “criticism, comment, news reporting, teaching… scholarship, or research.” 17 USC 107.
In this case, Google argued that the scanning and digitizing of books where internet users could search and view limited snippets of text for research purposes, and where the donating libraries received full digital copies of the books, was a fair use fulfilling scholarship and research purposes.
On the issue of fair use, the court considers four factors with respect to the unauthorized copying to see whether they, overall, favor fair use: (i) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount or portion of the work copied; and (iv) the effect of the use on the potential market.
I will not go into the details of the very thorough and straight-forward analysis made by the court (hit the link above for the full decision), but here’s the significance of this case: Fair use was found in Google’s favor despite the fact that Google Books is predominantly a for-profit commercial enterprise.
In 99% of fair use cases, the first factor (the purpose and character of the use) tends to prove dispositive against for-profit defendants. In this case the court went the other way due to what it saw as the overwhelming scholarly benefit that Google Books provided as well as the various security measures Google took to prevent general users from downloading full books by combining various snippets.
The Court noted:
[C]opying the entirety of a work may still be fair use. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); Bill Graham Archives, 448 F.3d at 613 (“copying the entirety of a work is sometimes necessary to make a fair use of the image”).
Thus Google now stands among a minority of fair use decisions where the defendant made a commercial use and won.