Thursday, April 21, 2016

Update on Google Books as Fair Use

In the early 2000’s, Google, in cooperation with certain libraries, publishers and authors, began the monumental task of scanning and digitizing books for the purpose of creating a database that would be publicly available and searchable. It launched Google Books in 2004. Although initially limited to the collections of a few major libraries, Google hoped to eventually include all available publications. 

Google Books is a nifty site that performs full text keyword searches of various works (more than 25 million scanned to date) to provide basic bibliographic information and links to bookstores and libraries where a book may be purchased or borrowed. Complete copies of books that are no longer subject to copyright or for which permission has been granted are available for complete view; sometimes they can even be downloaded. Previews or “snippets” may be available for works that are still under copyright (and included without the author’s or publisher’s permission), and in some cases, only basic “card catalog” information may be available. 

 Shortly after commencing its scanning project, Google was sued for copyright infringement in separate actions brought by the Authors Guild of America and the Association of American Publishers (AAP). Along the way, there were several attempts to reach settlement; including a 2008 proposed settlement agreement that would have required Google to compensate copyright holders who claimed copyright infringement and implement a system for collecting and distributing ongoing revenues to copyright owners. The proposed settlement was subsequently amended (regarding, among other things, the inclusion of foreign works and the treatment of funds attributable to unclaimed or “orphan” works), but  ultimately rejected by the court in 2011. This rejection was for a number of reasons, including an objection to the “opt-out” nature of the copyright owners’ participation, as opposed to an “opt-in” arrangement. 

After this rejection, the parties continued to negotiate until discussions were essentially sidelined by various court actions. The case eventually reached the Second Circuit which affirmed that Google’s digitizing of copyright protected works, the creation of search functionality, and the display of “snippets” from the works constitute non-infringing “fair use” under the copyright law. 

"Fair Use" is a defense or exception for what would otherwise constitute copyright infringement for such purposes as commentary, criticism, news reporting, teaching, research and parody. It is determined on a case-by-case basis, generally under application of four traditional factors:  (1) the purpose and character of use (e.g., commercial, public benefit, nonprofit educational, etc.), (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the work as a whole, and (4) the effect of the use on the potential market or value of the work. 

On Monday (April 18, 2016), the Supreme Court of the United States declined to reconsider the Second Circuit decision leaving that court’s fair use determination intact, and ending a decade-long dispute. It is unlikely that authors and publishers will simply go away. Concurrently with the lawsuit, there has been some lobbying for an ASCAP*-type arrangement. I wouldn’t be surprised to see something like that develop, as it could benefit Google, as well as the copyright owners, if it made more material available for Google Books use.

We are often confronted with clients who want to use images or parts of text they are able to pull off the internet (presumably, often found through a Google search). Many are surprised to learn that availability on the internet (even without a copyright notice) doesn’t mean you have the right to use or copy it. In most cases, their use of this type of material would likely not be considered “fair use” because of how it would be viewed under these factors.

*ASCAP is a music industry membership association that collects and distributes royalties for the licensing of certain music performance rights.

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