Second Circuit Holds that Google’s Digitalization of Published Books Constitutes Fair Use

In 2004, Google began a Digital Book Project, which involved scanning books under agreements with several major research libraries and other institutional partners around the world.  The Project resulted in an index of more than 20 million digitized books.  The digitalization of the books allows a Google search engine to provide the public to search the books for particular words, and then to read snippets of the book where the search terms are located.  Google also allows libraries participating in the Project to download the digital copies, by granting those libraries access through a Google internet portal. In 2005, several authors of copyrighted works filed a putative class action asserting that the Google Book Project infringed their copyright in their works.  In 2013, the District Court granted a motion for summary judgment in favor of Google, holding that the digitalization of the books and the resulting limited search capability constitutes “fair use”, protected by Section 107 of the Copyright Act.

In affirming the District Court’s decision, the Second Circuit looked at the four factor test of “fair use” described in Section 107 and determined that it was met by Google with regard to the Digital Books Project.  The Second Circuit held that Google had not usurped the market for derivatives of these works, and the application of search and snippet view functions with regard to the works was sufficiently transformative not to violate the copyright of authors.  The Court also found that Google’s allowance of access of digitized copies of the scanned books to libraries, with the understanding that the libraries would use the copies in a manner consistent with the Copyright Act, was not an infringement.  The Court also held that Google cannot be considered a contributory infringer.  Authors Guild. v. Google, Inc., 2015 WL 6079426 (2d Cir. Oct. 16, 2015).