In Authors Guild v Google – US Court of Appeals – Second Circuit – October 16, 2015 the appellants argued that Google’s digital copying amounted to the reproduction of entire books, thereby allowing users – through the snippet function to read portions of the books – was not a legitimate “transformative use”. The appellants also argued that Google effectively provided an illegitimate substitute for the plaintiffs’ (publishers) works. The Court of Appeals disagreed – see:
Judge Leval, writing the unanimous decision of the Court, concluded that the work was put to a “transformative purpose” and therefore amounted to permissible “fair use” under the Copyright Act of 1976. The Judge concluded that a number of functions or tools were in fact “quintessentially transformative” – see:
The Court summarised its findings at pg [4] as follows:
Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer.
