On Thursday, a judgment was rendered in the long-running copyright infringement action filed by Authors Guild against Google for its Google Books search service wherein in-copyright books, many of which were lent to Google by participating academic libraries, were digitally scanned and snippets of scanned pages displayed to searchers.  Judge Chin, who has presided over much of this eight year roller legal roller coaster, rendered summary judgment in favor of Google, declaring its book scanning and text display fair use.  This judgment is the third in so many months that is overwhelmingly in favor of fair use and the work of libraries, both on their own and in partnership with other entities. In all three cases, similar themes emerged, as demonstrated below, as the trial courts in each case conducted their fair use analyses: educational and research uses are important to promote, providing access to materials to underserved populations is critical, and preservation of at-risk materials is an important social benefit.

Four Factors of Fair Use
In order to invoke fair use, the use or reproduction of a copyrighted work must be for the purpose of criticism, comment, news reporting, scholarship, research or education. Further, there are four factors of fair use, and the balance of these must weigh in favor of such use.  Consideration of all of the fair use factors is required; however, all four factors do not have to weigh equally in favor of the proposed use.

The four factors of fair use are: (1) why is the work being used, (2) what is the nature of the work being used, (2) how much of the work is being used, and (3) what effect does the use of the work have on the market for that work.

Fair Use in Google
Judge Chin found three of the four factors of fair use in favor of Google and thus rendered judgment on its behalf. His determinations on each factor were as follows:

Factor One – In many fair use cases of the last 20 years, a determination of transformative use has been dispositive of the first fair use factor. And here, Judge Chin determined that Google’s use of the digital book scans is highly transformative. The use of snippets of text to facilitate researcher, reader and scholar identification of relevant works as well as the the facilitation of text and data mining for research were deemed by Chin to be new purposes lending toward a finding of transformative use. He also determined that these uses had high educational and research value worthy of protection.

Factor Two – Although the works scanned by Google were of all types (fiction, non-fiction, out of print), Judge Chin found in favor of Google on this factor, determining that the majority of the corpus of works scanned were non-fiction or informational works.

Factor Three – Judge Chin concluded that his analysis of this factor weighed “slightly” against fair use due to the fact that entire books were scanned. However, he also acknowledges that scanning of the entire works was necessary to accomplish the transformative uses of those whole work scans.

Factor Four – Because the search of books on Google was likely to lead to the commercial purchase of the book, Judge Chin found no market harm. The scans would not be used to replace purchase of the original.

Fair Use in HathiTrust
In addition to suing Google, Authors Guild has also filed a copyright infringement lawsuit against HathiTrust and several of its partner university libraries. Author’s Guild alleged that HathiTrust’s digitization of books for the purposes of making preservation copies, to allow for full text searching, to provide access to persons with print disabilities, and to allow access to orphan works violated their members’ rights under copyright law. The trial court granted summary judgment in favor of HathiTrust and the universities last fall. The trial court declined to rule on the orphan works question on the ground the issue was not ripe for adjudication because the program was still in development and not yet active. Notably, the judge wrote “I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants.”

Factor One – The trial court found that the overarching purpose for HathiTrust’s activities is to promote scholarly and research activities, which are squarely within fair use. Scanning works to preserve them, though not transformative, is fair use on account of the overriding public interest in preservation of knowledge. Scanning of works for the purpose of enabling full text searching as a means of identifying works relevant to one’s research is a highly transformative use and thus qualifying as fair use. Digitization for the purpose of providing access to persons with print disabilities is also a highly transformative use qualifying as fair use.

Factor Two – Given the overwhelming transformative nature of the HathiTrust’s uses of the copyrighted works, the court determined that whether or not the works were informational or creative in nature was not dispositive of the fair use question.

Factor Three – The trial court held that even though entire books were scanned, this amount is necessary to the transformative uses made by HathiTrust.

Factor Four – Stating an intention to license the works at a later time for digital access cannot trump the transformative uses already being employed. A copyright holder will not be permitted to preempt a transformative market, particularly where, as here, there is no demonstration of market harm as a result of these noncommercial uses.

Fair Use in Georgia State
In 2008 publishers Sage, Oxford and Cambridge, filed suit against officials at Georgia State University for alleged copyright infringement arising as a result of the posting of book chapters reproduced from handbooks and other books published by them in GSU’s course management system and electronic course reserve system. The case when to trial and in May 2012 the trial court rendered judgment in favor of GSU.

Factor One – Judge Evans found that GSU’s educational purpose was clearly fair use. Significant time was spent distinguishing provision of course reserves by libraries to students enrolled in a course from the for-profit activity deemed infringing in the Kinkos coursepack case. The trial court did find, however, that mere reproduction of scholarly works for course reserves was not a transformative use.

Factor Two – The trial court found that the content of the works copied were largely informational as opposed to creative or artistic and use of informational or factual works was generally considered to be fair use. The court dismissed the “sweat of the brow” argument that the work entailed in producing scholarly works was entitled to greater protection. The court found that permitting reproduction of excerpts of scholarly works had zero effect upon an author’s incentive to create scholarly works. There was no negative impact upon the incentives of prestige, advancement of knowledge or acquiring a positive result in tenure and promotion decisions.

Factor Three – Most important in the discussion of factor three, Judge Evans rejected the Classroom Guidelines both as to amount and repetitive use. The low ceilings imposed in the outdated Classroom Guidelines and advocated by the publishers were rejected by the trial court as inconsistent with fair use as was the suggestion that fair use did not permit repetitive use of works in course reserves. The trial court held that the amount of a work reproduced has to be “decidedly small” and narrowly tailored to the express pedagogical purpose. The trial court also articulated some of its own guidelines, which it did not strictly adhere to when reviewing each of the alleged incidents of infringement committed by GSU. The trial court stated that it is generally to be considered fair use if 10% of a work less than 10 chapters or a single chapter of a work greater than 10 chapters was reproduced.

Factor Four – The publishers failed to demonstrate to the trial court’s satisfaction any harm to their bottom line. The trial court stated that the publishers argument that e-reserves would put them out of business was glib and that any revenues received from academic licensing were at best miniscule. And the recent press release from CCC that it paid out a record $188.7 million in royalties to publishers in 2013 is evidence that they are not hurting.

All three of these cases will be decided on appeal. Oral argument in the HathiTrust case occurred October 30, 2013, and oral arguments are scheduled Tuesday (November 19th) in the Georgia State case. Authors Guild announced its intention to appeal the Google case shortly after the judgment was rendered. Hopefully the appellate courts hearing these cases will further support and strengthen the well-reasoned judgments of their lower court brethren, for as Judge Chin so aptly states, uses such as the ones at issue in the Google case:

Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.