Google Books: Court's Conflation Creates Confusion

• Jurisdiction: United States,Federal
• Citation: Vol. 41 No. 2
• Publication year: 2016
• Author: ANDREW STROUD
• topic: Copyright law

Google Books: Court's Conflation Creates Confusion

ANDREW STROUD

Hanson Bridgett

Since the 1990 publication of the Hon. Pierre Leval's article "Toward a Fair Use Standard,"¹ the statutory doctrine of fair use has undergone significant transformation. In his article, Judge Leval opined that the critical inquiry for determining fair use turned on "whether, and to what extent, the challenged use is transformative."² Judge Leval posited that in order to meet the fair use standard, the secondary use "must be productive and must employ the quoted matter in a different manner or for a different purpose from the original."³ While this language would appear to place limits on what constitutes fair use, in actual fact these limitations have proven difficult to define.

Judge Leval's article was cited by the Supreme Court in Campbell v. Acuff-Rose Music, Inc.,⁴ proposing that a secondary use must generally be transformative in order to constitute a fair use; i.e., that it must add "something new...with a further purpose or different character, altering the first with new expression, meaning or message."⁵ After Campbell, the "transformative use" test has become the sine qua non for fair use. If the court finds that the use is not transformative, then the secondary use constitutes an infringement. Alternatively, if a court finds the secondary use to be transformative, the secondary use constitutes a fair use.⁶ Most recently, in The Authors Guild, Inc. v. Google, Inc.⁷ ("Google Books"), the Second Circuit, in an opinion authored by Judge Leval himself, put the book-end on the transformative use test by finding that an author's entire work can be copied verbatim under the fair use doctrine, if the copying is for a transformative purpose that benefits societal interests.

As the Plaintiffs' petition for writ of certiorari was recently denied by the Supreme Court,⁸ the Google Books decision will now be precedential and may soon be adopted by numerous other courts, which will further undermine the traditional fair use test as established by Congress.⁹ Now copying on a massive scale may be deemed fair use, so long as the secondary work is used in a manner that a court finds benefits the public, even at the expense of the author.

Judge Leval's "ends justify the means" decision in Google Books is incorrect in its analysis and should not be followed. In Google Books, the court conflates the author's exclusive right to display the author's work with the author's exclusive right to reproduce the work. By conflating the analysis of these two separate and distinct rights, the court improperly concludes that because Google displays works in a manner consistent with fair use, Google has the right to copy them under fair use as well. This is not the case. Because both the right to display and the right to reproduce were at issue, the court should have separately applied the fair use analysis to each alleged infringement of a right. The case would have come out differently had the court done so. While Google's display of the plaintiffs' works may have been for a transformative purpose, Google's copying of the books was not. Google should be liable for infringing on the author's exclusive right to reproduce the author's work. Simply because a work will be displayed for a purpose and in a manner consistent with fair use does not mean that a copy of the work can be misappropriated for that purpose as well. Nothing in the digital age changes this fundamental truth.

THE GOOGLE BOOKS CASE

In Google Books, Google made digital copies of tens of millions of books submitted by research libraries for Google's "Library Project." The scans were made without permission from the authors of the books. Google then used the scanned copies to create a database with a public search function. Users can access the database through the Internet and perform word searches to determine what books may contain information useful to the searcher. The search function does not allow the searcher access to the entire work, but will display "snippets" of text from the book containing the relevant term. Google also allows the libraries to keep the digital copies of the books that were created, so long as the libraries agree not to use the copies in a manner that violates copyright law.¹⁰

The Author's Guild, an association representing...