Victory for Google Books and Fair Use

A major legal victory for Google Books is also a major win for fair use, free expression and innovation. And the judge who wrote the decision will be on campus Nov. 12 to talk about it and more.

Google Books depends on the copyright doctrine of fair use (the limited right to reuse copyrighted material without permission or payment) to copy entire books, in order to provide snippets on demand—just like it has to make copies of items it samples to answer your search questions. Publishers protested that this infringed their copyright and might cut into their revenues.

Now, an appeals court decision written by Judge Pierre Leval, who back in 1990 wrote the supersmart law review article that helped usher in modern fair use interpretation, makes clear that fair use covers Google’s actions. And in doing so, Judge Leval has also reinforced the sturdiness of fair use’s basic transformative logic.

He also cleared up some common misconceptions.  This clarity should help anyone who depends on fair use to create new culture—which is just about everybody.

What’s the purpose of copyright?

First, what is copyright for? Not to give authors (or more often their descendants or the businesses that bought the copyright) monopoly over what to do with their creation. That’s just one of the mechanisms—and a limited one—to fulfill copyright’s true aim. As Judge Leval puts it,

The ultimate goal of copyright is to expand public knowledge and understanding . . . Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

What’s transformativeness?

The decision was anchored in the notion of transformativeness, as a way of understanding whether a use expands knowledge and understanding, rather than simply substituting for the original. “[T]ransformative uses tend to favor a fair use finding,” the decision states, “because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”

Transformativeness is, of course, typically about context, not about altering the thing itself.  Or, to use the decision’s language: 

Complete unchanged copying has repeatedly been found justified as fair use when the copying was appropriate to achieve the copier’s transformative purpose and was done in such a manner that it did not offer a competing substitute for the original.

Not derivative.

Judge Leval points out that “derivative works” (a play from a novel, for example), often involve taking someone’s work and doing something to it to change it. By contrast, straight-out copying in a different context—for instance, criticism or commentary—is transformative.

What is transformed when Google Books copies a whole book, in order to show how many times and where keywords appear or select snippets at a user’s request? The creative material in the book is turned into information about the book; Google is showing you what the book is about, in that place. It’s letting you know just enough about the book to answer a query, but not enough to substitute for the book itself.

Taking it all.

Judge Leval thus also made clear why sometimes taking 100% of something can be totally legitimate fair use. Google couldn’t provide this function that enlarges knowledge and learning without doing so: 

not only is the copying of the totality of the 
original reasonably appropriate to Google’s transformative purpose, it is literally necessary to 
achieve that purpose. If Google copied less than the totality of the originals, its search function 
could not advise searchers reliably whether their searched term appears in a book (or how many 
times).

And about the money…

But couldn’t a user snatch just the information they needed from Google Books and not have to buy the book? Yes, said Leval, it’s possible. But the potential loss from such incidents just isn’t significant. And most of the times that might occur, what the user would get is a fact, which isn’t copyrightable anyway.

This decision powerfully reinforces the main line of judicial interpretation of fair use today, grounding its logic in the difference between facts and expression; between transformativeness, derivativeness, and substitution; and showing that it’s not about the money, but about stimulating the creation of culture.