In a unanimous decision, the Second Circuit on October 16 ruled that Google Books’ scanning and indexing of books is a transformative use that renders a public benefit, leading to a finding of fair use.
This is the latest development in a decade-long saga that, as the Second Circuit noted in its opinion, tests the boundaries of fair use. The Court found that all four statutory factors favored finding fair use, in large part because of the highly transformative nature of Google Books and the low risk that it would act as a market substitute for the original works. The Court also rejected the rest of the plaintiffs’ arguments, including that Google infringed their exclusive right to apply search and snippet views to their own works and that Google contributed to infringement by libraries participating in the program.
The Authors Guild in a statement slammed the decision as a “reductive understanding of fair use” and said it will appeal to the Supreme Court.
Michael Keyes, an intellectual property partner at the international law firm Dorsey & Whitney, said the immediate effect of the ruling is that Google will be able to continue its large-scale book scanning project in its present form without fear of copyright liability.
But he added: “I think the long-term effects could be significant. It could open the door for other similar types of digitization projects involving copyrighted works so that those works could be catalogued and searched.”
Joshua Schiller, partner at Boies Schiller & Flexner, doubts an appeal to the Supreme Court would be successful. “It is unlikely that the Supreme Court will take a petition, if one is filed, since this case keeps consistent the law of fair use among the circuits.”
Others, however, believe there are issues to be debated at the Supreme Court regarding this case. David Leichtman, a partner at Robins Kaplan, commented: “[The] decision is also at odds with both the 7th Circuit and the 11th Circuit, and thus now sets up a showdown in the Supreme Court over what it meant in 1994 when it used the word ‘transformative’ in the fair use context.”
