The Second Circuit Court of Appeals recently ruled that Google’s scanning of printed books and subsequent use of the resulting digital copies is fair use under the Copyright Act (17 U.S.C. § 107). Google was first sued by the Authors Guild a decade ago over its Library Project and Books Project, which involve scanning published works to create digital copies, making the text searchable, and displaying at least snippets of the work in connection with search results. The decision affirmed the lower court’s grant of summary judgment and focused on the transformative nature of Google’s use. The Second Circuit noted that Google’s use provides information about a book without being a substitute for the book itself. The decision may not be the final word in this case—the Authors Guild states on their website that they intend to appeal the ruling to the Supreme Court.
This decision is an example of how fair use can protect products that build upon copyrighted content and serves as a reminder that, under some circumstances, commercial use of another’s content can qualify as lawful fair use. At the same time, businesses should not read too much into this decision. There are unique public policy interests advanced by the Google projects–and most copyright defendants will struggle to find a similar factual basis for defensive arguments grounded in “transformative” fair use.
The Second Circuit opinion can be read here.
PartnerPatrick J. Concannon is a partner in Nutter's Intellectual Property and Corporate and Transactions Departments. Pat co-chairs the Trademarks and Brands practice, with over 25 years of experience devoted to helping businesses ...
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