Fair Use Affirmed On Appeal in Google Books Case

Posted October 16, 2015

Today the Second Circuit Court of Appeals issued a widely anticipated ruling in favor of the defendants in the Authors Guild v. Google case, marking a major victory for fair use in a lawsuit which has been making its way through the courts for a decade.

A brief summary of the litigation highlights the crucial importance of this decision. In 2005, the Authors Guild filed suit against Google, claiming massive copyright infringement due to the digitization of copyrighted works by Google Book Search. After protracted negotiations, a controversial settlement agreement was proposed in 2009, but ultimately rejected in 2011 by Judge Denny Chin. In November 2013, the case was dismissed on the grounds that Google Books’ use of digitized materials met the criteria for fair use, and was of significant public benefit.  Chin also rejected the plaintiffs’ argument that Google Books does economic harm to copyright holders; on the contrary, he stated that Book Search can, in fact, increase sales. In April 2014, Authors Guild appealed that decision, but the Second Circuit has now unequivocally reaffirmed the earlier rulings in favor of Google.

Today’s decision states that “Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.”

For those who have been following the Authors Guild litigation, today’s decision—significant as it is—was not unexpected. In recent years, a growing body of caselaw has developed around fair use, some of which originated with another unsuccessful lawsuit. That case, Authors Guild v. HathiTrust, filed in 2011 as a parallel action to Google Books and concerning the use of books digitized by Google and shared among a consortium of libraries, had already been decided in the defendants’ favor in 2012, a ruling that was upheld on appeal by the Second Circuit in June 2014.

As an organization whose members believe in making their work available and accessible, Authors Alliance stands firmly on the side of fair use.  Last July, we filed an amicus brief with the Second Circuit in support of the fair use defense in this case, because Book Search increases the discoverability of work without threatening its marketability. One year ago, we expressed our hope that the court would rule in favor of Google and Book Search. Today, we applaud the courts’ decisive reaffirmation of fair use in helping authors to make their work more widely available and accessible to researchers, students, and the public.