Another important copyright decision is in—this time from the Second Circuit Court of Appeals in Authors Guild v. Google, Inc. Plaintiffs—authors of copyright protected books—brought an action for infringement against Google, claiming that its digitization of millions of books without Plaintiffs’ permission violated copyright law. The court on appeal, acknowledging that this dispute “test[ed] the boundaries of fair use,” ruled in favor of Google, allowing the search-engine to shelve this case in the W column. Below are my key takeaways from the court’s decision. First, here’s what you need to know about the case: Google scanned millions of books—without permission from the rights holders—and made them accessible to Internet users, who in turn, could search and view randomized pages (snippets) of the books on Google’s site (Google Books) for free. Google did this as part of its Library Project. With nearly twenty million books digitized from some of the world’s largest libraries, Google Books is a powerful research tool that provides users with information not “obtainable in lifetimes of searching.” So why did the court conclude Google’s unauthorized copying of millions of books didn’t violate copyright law? Fair use, of course! Here are the key legal takeaways from the decision:

  1. Although authors are clear beneficiaries of copyright protection, the “ultimate, primary intended beneficiary is the public.” It is from that view that the court analyzes a fair use defense raised pursuant to § 107 of the 1976 Copyright Act.
  2. Fair use is a four factor analysis, the court considers: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. No factor is outcome determinative.
  3. The four factor analysis imposed by § 107 is designed to, as the Second Circuit put it, “define the boundary limit of the original author’s exclusive rights in order to best serve the overall objectives of the copyright law…”
  4. The word ‘transformative’, as used to discuss the first fair use factor, can be misleading: fair use is not found when there has simply been a transformation in form (which, generally speaking, would be part of the original author’s derivative rights); rather, the term ‘transformative’ in this context requires a finding that the copier’s use “communicate[d] something new and different or expand[ed] its utility.”
  5. Even where the use at issue is commercially motivated, there is no presumption against concluding such use was fair. Moreover, even where the use at issue is a complete, unchanged copy of the original, there is no presumption against concluding such use was fair.
  6. Copyright is a “commercial doctrine” with the purpose of stimulating creativity while simultaneously enabling creators to profit from their originality. Thus, the impact the use at issue has on the original’s value is an especially important consideration.

Here, the court made certain its analysis of this case closely tracked the underpinnings of copyright law. That is, it considered Google’s fair use defense bearing in mind the importance of balancing expression protection and advancing public knowledge. Reaching its decision primarily based upon the legal principles discussed above, the court held that Google’s Google Book database, despite clear commercial motivation and complete, unchanged and unauthorized copying, did not constitute infringement. The transformative nature of its database—mainly, the capabilities and restrictions associated with digital searches in Google Books—was fair use.