As the Atlantic reports, the Second Circuit issued a ruling in Author’s Guild, Inc. v. Google this month, holding that Google’s massive book digitization project, “Google Books,” is a non-infringing use. To create Google Books, the company scanned millions of library books and made portions of each book available for free online. Users can search Google’s database for quotes or information, revealing portions of the relevant book, while most of its contents remain hidden from view. Google has also produced programs like Google Ngrams, which allows users to track word usage over time by searching all of the works in the Google Books database.
The Author’s Guild is an organization of professional, published authors. The Guild filed suit ten years ago, when Google Books was still a relatively new project. It alleged that the Google Books archive infringed upon its members’ exclusive rights to copy, display, and distribute their works. The main question before the court was whether Google Books constituted a “transformative use” of the original works. Transformative use, part of the first prong of the fair use test laid out in 17 U.S.C. 107, has become increasingly pivotal in the fair use inquiry. An example of transformative use is a parody, which comments upon or criticizes an original work. The Second Circuit found that the purpose of Google Books was “highly transformative.” By not revealing most of the text, “the public display of text is limited and the revelations do not provide a significant market substitute for the protected aspects of the originals.”
Experts agree that the Supreme Court is unlikely to hear an appeal. For now, Google Books is in the clear.
Miranda Means is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current second year student at Harvard Law School (Class of 2017).