Last week's decision in the Google Books case (Author's Guild v. Google) has been widely hailed as a victory for both fair use and innovation.
In granting summary judgment for Google, Judge Chin found overall that
Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.
Per the requirements of section 107 of the Copyright Act and relevant case law, Chin evaluated the four factors of fair use separately and together to come to his ruling. Chin's discussions of the two factors that he found heavily favored the fair use finding may be of special interest.
Discussing the purpose and character of fair use, Chin found that Google Books is a highly transformative use of the original material:
Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative.
He further noted:
Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before.
Discussing the effect of use upon potential market or value, Chin determined
a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered -- whether potential readers learn of its existence.
In his overall assessment, Chin also specifically addressed an issue that may be of special interest to our community--the digital copies of books provided to the libraries from which they were scanned:
Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement, Google's actions constitute fair use here as well. Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of the library copies is to advance the libraries' lawful uses of the digitized books consistent with the copyright law. The libraries then use these digital copies in transformative ways. They create their own full-text searchable indices of books, maintain copies for purposes of preservation, and make copies available to print-disabled individuals, expanding access for them in unprecedented ways. Google's actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use.