Google Books, Fair Use, and the Public Good

Note — thanks to several readers who pointed out that I had carelessly misspelled Judge Leval’s name in my original posting.  That error has now been corrected.

On Friday the Second Circuit Court of Appeals issued its ruling in the appeal of the Authors Guild lawsuit against Google over the Google book search project.  The decision was a complete vindication of the District Court’s  dismissal of the case, affirming fair use and rejecting all of the counterarguments offered by the Authors Guild.

As it happens, I was traveling when the decision came down, confirming a troubling tendency of the federal courts to issue important copyright opinions when I am out-of-pocket.  (My wife says that it is not about me, but what sense does that make?)  In any case, that slight delay allows me to benefit richly from the analyses posted by some very smart colleagues.  Here are several great places to read about the decision:

From Brandon Butler of American University.

From Corynne McSherry of the Electronic Freedom Foundation

From Krista Cox of the Association of Research Libraries

From Carrie Russell at the American Library Association

I want to add, or really just pull out from these previous posts, three points that I think are especially important.

First, Judge Pierre Leval, who wrote the opinion, does a nice job of drawing a line from the idea of transformative uses to the public purpose of copyright law.  This is hardly surprising, since it was Judge Leval who wrote the 1990 article that coined the term transformative use and had such an influence on the Supreme Court in its 1994 decision in Campbell v. Acuff-Rose Music.  In this ruling, Judge Leval reminds us quite forcibly that the primary beneficiary intended by copyright law is the public, through “access to knowledge” (p.13) and “expand[ed] public learning” (p. 15).  Economic benefits for authors are instrumental, not the ultimate goal of the copyright monopoly.  Then Judge Leval explains how this analysis of transformation serves those goals, clarifying why fair use is an essential part of copyright’s fundamental purpose.  He tells us that transformation is an answer to the question of how a borrowing from a copyrighted work can be justified.  The court, on behalf of a rights holder, asks a user “why did you do this?”  When the answer to that question is “because I wanted to make a new contribution to knowledge,” that is a transformative purpose.  And, by definition, it is a purpose that benefits the public, which justifies whatever minor loss a rights holder might suffer from the use.  The second step in Judge Leval’s  analysis, asking if the new use is a market substitute for the original, ensures that that loss is not so great as to outweigh the benefit. Thus we have a coherent analysis that recognizes the public purpose of copyright and still respects it chosen method for accomplishing that purpose.

Another important thing we can learn from Judge Leval’s opinion is about the difference between a transformative use and a derivative work.  The Author’s Guild (really some individual authors set up as plaintiffs because the AG has been found to lack standing to sue in this case) argues that allowing the Google Books’ search function usurps a right held by those authors to license indexing of their works.  This is ridiculous on its face, of course — imagine the effect such a right would have on libraries — but the judge does a nice job of explaining why it is so wrong.  The decisions rest heavily on the idea/expression dichotomy that is fundamental in copyright, and stresses that what is presented in the Google Books “snippet view” is more information about books (facts) rather than expressive content from those books.  A derivative work, Judge Leval suggests, is one that represents protected aspects — the expressive content — of the original in an altered form (such as a translation or a movie script).  A transformative use, on the other hand, uses information about the works, as in an index, or uses their content for a different expressive purpose, as in parody or scholarly comment.  This is a difficult distinction to make, as all of us who work in copyright know all too well, and it remains to be seen if the approach outlined above will hold up or prove useful in the full range of situations.  But it is a pointer toward a coherent way to understand a difficult part of the copyright balance.

As an aside, while reading the opinion in this case I was struck by how well the four fair use factors were handled, in a way that showed that the test used by Judge Leval respected all of the factors while essentially applying two basic questions — is the use transformative and does the new work create a market substitute for the original.  In fact, I can suggest three specific passages that are especially exciting, I think, for the application of fair use and the issue of transformation — footnote 21 and accompanying text, which helpfully clarifies the relationship of the second fair use factor to the analysis of transformation; the full paragraph on page 33, that considers the use and misuse of the third factor; and the careful distinction of Google snippets from a case involving telephone ringtones that is found on pages 40-41.  These are discussions that I think will have a significant impact on our ongoing consideration of fair use.

Finally, we should note that the Authors Guild has already indicated its intention to ask the Supreme Court to review this decision.  This is a very bad idea, indicating that the AG simply does not know when to cut its losses and stop wasting the money provided by its members.  The real point, however, is that the Supreme Court is not likely to take the case anyway.  This is not a situation where a fundamental Constitutional issues is involved, as it was in the Campbell case (fair use as a protection for free expression) nor one where a fundamental point about our obligations in the international arena was at issue, as it was in the Kirtsaeng case about the application of first sale to works of foreign manufacture.  In short, this is just a case about a greedy plaintiff who wants to be given an even bigger slice of the copyright pie, which the courts have determined repeatedly it does not deserve.  This is not the sort of issue that attracts the very limited attention of the Supreme Court.  In fact, reading the Court of Appeals’ ruling leaves one with a sense that many of the AG’s arguments were rather silly, and there is no reason to believe they would be less silly when presented to the Supreme Court in a petition for certiorari.

There are some who have argued that there is a split among the Circuit Courts of Appeal over transformative use, which is also a situation that can lead to Supreme Court review.  But that split has always been predicated on the idea that other courts, especially the Ninth Circuit, have carried the idea of transformation too far and departed from the ambit of the original doctrine.  The fact that it is Judge Leval, the author of that approach to fair use, who wrote this opinion, effectively undermines that claim.  In short, this decision closes a circle that outlines a capacious and flexible approach to fair use.  For getting us to this point, I suppose we should thank the Authors Guild for the unintentional support they have provided for a balanced copyright law in the digital age.

10 thoughts on “Google Books, Fair Use, and the Public Good”

  1. By this reasoning, anyone who claims that they are borrowing other people’s material to add to the public knowledge can safely appropriate the work of others. While I truly believe in fair use as a defense in a copyright infringement lawsuit, I think we have to be careful about making it a “right” which many mistakenly assume. If, in the end, anyone can “borrow” from anyone else’s work, then the value of creating work and copyrighting it is greatly diminished. The ultimate loser is the public, which will not benefit from new original works. For those of us who both use and sell our copyrighted work for re-use in other works (clip licenses, for example) we have seen our income from this kind of sale fall from a healthy one to practically zero over the past ten years. Why should we continue to maintain and preserve these assets if we cannot even cover those costs. If these assets are lost, once again, it is the public that loses. So, where in these fair use arguments is a provision for the public to help support the continued preservation of the very elements from which they are freely borrowing? I still have heard no good suggestions from the “fair use community” on this subject. And please don’t tell me that someone’s use of my material is a great way to get exposure. Sure, for yet another person to “borrow” (and I’m being kind with that word – I prefer STEAL)? Suggestions anyone?

  2. I couldn’t help be struck by the difference in headlines announcing the 2nd Circuit’s decision.
    Most interested parties stuck to a neutral statement of facts, such as “Second Circuit Affirms Fair Use in Google Books Case,” as did the ARL and Publisher’s Weekly, for example.
    The Author’s Guild: “Second Circuit Leaves Authors High and Dry.”

  3. From the above: Finally, we should note that the Authors Guild has already indicated its intention to ask the Supreme Court to review this decision. This is a very bad idea, indicating that the AG simply does not know when to cut its losses and stop wasting the money provided by its members.”

    According to its IRS 990 for year ending 30 SEP 2013, Part IX item 11b, The Authors Guild had ‘outside legal service’ expenses of $0. So maybe it would be wasting money of persons or entities other than from their Members should they appeal to the Supreme Court.

    1. Note that the same item on Authors Guild IRS 990 for year ending 30 SEP 2014 for the same item as above is the same: $0 for outside legal service expenses.

  4. According to the IRS 990 for year ending 30 SEP 2014, The Authors Guild had membership fee revenues of about $900,00 and total revenue of $2.2 million. On the filings for attorneys fees for the District Court HathiTrust case, the Guild’s lawyers said that they billed roughly 1500 hours over the course of that case.

    It seems to me that there is no way the Guild could pay for 2 district and two 2nd Circuit appeals cases based on this revenue stream; based on simple arithmetic, they most likely are receiving support in that some other entity is helping pay their legal bills or paying them in full and doing so in a manner that does not require reporting such outside legal expenses to the IRS.

    So the notion that the Guild should ‘ cut its losses and stop wasting the money provided by its members’ as above is dubious. Even so, and even if the Supreme Court does not take the case, if the Guild, their attorneys, and whoever might be helping to cover their legal costs decide they want to send an appeal request to the US Supreme Court, that is their right.

  5. How conceptually helpful is Leval’s attempt to distinguish derivative works from transformative uses when he ignores two types of works cited in the Copyright Act itself that do NOT involved changes in form or format, viz., condensations and abridgments?

  6. I have been pondering over this since a while now and would deeply appreciate if someone can enlighten me on this- “How can potential readers/ researchers access the full scanned copies of the digitized books”. Two alternatives come to my mind –
    (i) Either by entering into a license agreement with the participant libraries (if at all this an option, how will the specifics of the license play out is something not very clear to me). Or
    (ii) Either by entering into a license agreement with Google wherein a provision for royalty to the author is made.

    In case, there is no way for a reader to get access to the full scanned copy of the book, does this not question the limited utilitarian value of the Google’s Library Project?

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