Authors Guild v. Google: Understanding the Four Factors of Fair Use
The fair use doctrine has been described as “the most troublesome in the whole of copyright law” (Dellar v. Samuel Goldwyn, 1939). Even judges, attorneys, and law students have difficulty grasping the concept. It’s that bad.
Fair use is difficult to define because there are no bright-line rules to define the concept. Courts weigh and balance four factors during a fair use analysis, but other than that there is often little consistency. Examination of fair use occurs on a case-by-case basis, and the outcome turns heavily on the individual facts of each case. The result is a patchwork body of case law that makes predicting outcomes in fair use disputes very difficult.
Nevertheless, it is important to understand fair use because of how easy the Internet makes it to use and infringe upon copyrighted material. Copyright infringement is a strict liability tort; in other words, if a court finds the copyrighted work was infringed upon, it does not matter if a person or business actually knew what they did was illegal. They are liable for damages. Besides rolling stops and going 10 miles over the speed limit, we as a public don’t actually think that it should be as easy to deliberately break the law as the Internet makes it.
This article examines the application of the fair use four-factor balancing test in practice through the example of Authors Guild v. Google. The recent dismissal of Authors Guild by federal Judge Denny Chin was praised by the ALA, the Electronic Frontier Foundation, scholars, researchers, and other fair use advocates. The court walked through each of the four factors, explaining why Google's scanning of library books and placing them in a searchable database (although not full-text readable) constituted fair use, so I would like to use this example to better explain fair use itself.
Authors Guild v. Google
In 2005, the Authors Guild sued Google for copyright infringement because the latter had scanned and digitized over twenty million copyrighted books. Google and the participating research libraries digitized these works without the permission of the copyright holders. This project was undertaken to provide a searchable index of the contents of the books, without actually providing access to this content. This distinction played a critical role in the ultimate dismissal of the case.
Policy Behind Fair Use
The fair use doctrine was designed to strike a balance between the rights of copyright holders and the rights of the public. The Copyright Clause—found in Article I, Section 8, Clause 8 of the United States Constitution—established limited rights for copyright owners in order to “promote the Progress of Science and useful Arts.” Fair use reflects this intent to encourage progress and innovation by recognizing that the value of public knowledge in a democratic society sometimes outweighs the exclusive rights of the content’s creator. It is important that we as information professionals actually know what the fair use sections actually says.
The Four-Factor Balancing Test
The factors for determining fair use are codified in section 107 of the Copyright Act.
§ 107. Limitations on exclusive rights: Fair use
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107.
1. Purpose and Character
The key question in assessing this factor is whether the work is “transformative” or “nontransformative.” Has the new work transformed the original, such as in parody or creating new information and commentary? Does the new work merely “supersede” or “supplant” the original? Or does it “instead add something new, with a further purpose or different character, altering the first with new expression, meaning or message”? (Authors Guild, Inc. v. Google, Inc.,2013, citing the Supreme Court case Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 1994). The Supreme Court has said that this factor tends to be a primary indicator of fair use. A work typically needs to be noncommercial and transformative (meaning, it adds value to the original work, like commentary and criticism does).
In Authors Guild, Judge Chin found Google’s use of the copyrighted works “highly transformative” and strongly indicative of a finding of fair use. The purpose of Google’s digitization project was not to supplant and replace the books, but to “transform” the texts into a “comprehensive word index that helps readers, scholars, researchers, and others find books.” It transformed book text into data for research. Further, Google Books did not supersede or supplant the original copyrighted works because it is “not a tool to be used to read books.”
2. Nature of the Work
The second factor focuses on the nature of the work; is it factual, informational data? Is it published or unpublished? Potential “fair users” have more freedom on published works than with unpublished. As a matter of policy, copyright law wants to give the author of an unpublished work the opportunity to benefit from it (see the fourth factor for more about potential markets). The restrictions on works of fiction tend to be much greater than on works of nonfiction and facts. History, facts, and the like, belong to the public knowledge. Works of fiction are necessarily works of the author's creation and imagination. Authors Guild needed little analysis, since most of the books were nonfiction and all of the books had been published and made available to the public. The court found that these considerations weighed in favor of a finding of fair use.
3. Amount and Substantiality of Portion Used
The third factor focuses on how much of the original work is used. Typically, less is better than more for a defendant. Even in works of nonfiction, how much of the work is used and claimed as “fair use” matters. Even in cases of small portions being used, if it is considered to be the heart of the original work, the courts have tended to side with the copyright owner.
The court found that the third factor weighed slightly against a finding of fair use in Authors Guild. The Google Books project scanned the entire books and made verbatim copies. On its face, this tends to weigh against fair use—though some courts have held that copying an entire work is still fair use. Still, Google did not make the scans of the entire books retrievable. The text retrieved from a search is limited. The entire books were scanned in order to make them searchable, not in order to supplant or supersede the books. This strongly relates to the fourth factor, the impact on potential markets.
4. Effect on Potential Market or Value
The fourth factor is the effect of the use of the work on the market. Does the use adversely affect original authors’ ability to gain income on their work or deprive them of new market opportunities? In other words, a use of copyrighted material is not a fair use if it will adversely affect the copyright holder’s ability to capitalize on a new market for the copyrighted work.
Authors Guild noted that Google’s scans hurt the potential market for copyright holders. Even without full text access, users could find enough of a snippet to reduce or eliminate their need for the actual book. Nonetheless, the court found that Google’s digitization enhanced an author’s ability to have a title discovered. The ability to find a book increased the potential audience, and thus the project had potential to increase the impact on the market.
Judge Chin has been praised for the common-sense analysis in the case. We should also recognize Google for finding the public good-copyright holder balance sought by the Copyright Clause and fair use doctrine. Google Books provides a searchable database of millions of books, without infringing on copyright by providing unauthorized access to entire books. Judge Chin praised Google Books for providing “significant public benefits,” including the ability for students, teachers, librarians, and researchers to identify and find books through full text search, while also preserving rare and out-of-print books that may be long-forgotten in libraries. By making these millions of books more easily discoverable, Google Books creates new sources of income of authors and rights holders, while also facilitating access by populations that would otherwise not have immediate access to the physical books housed in these few research libraries.
Authors Guild v. Google, Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011)
Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013).
Dellar v. Samuel Goldwyn, 104 F.2d 661, 662 (2d Cir. 1939).
For more information on the meaningfulness of the dismissal of Authors Guild v. Google, and to see the actual summary, please see:
Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013). http://www.documentcloud.org/documents/834877-google-books-ruling-on-fair-use.html or http://library.osu.edu/blogs/copyright/files/2013/11/Authors-Guild-v-Google-Summary-Judgment-Decision.pdf
Authors Guild v. Google, Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011). http://scholar.google.com/scholar_case?case=11449470169883565960&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Electronic Frontier Foundation, “Authors Guild v. Google, Part II: Fair Use Proceedings” https://www.eff.org/cases/authors-guild-v-google-part-ii-fair-use-proceedings
Electronic Frontier Foundation, “Court Upholds Legality of Google Books: Tremendous Victory for Fair Use and the Public Interest,” https://www.eff.org/deeplinks/2013/11/court-upholds-legality-google-books-tremendous-victory-fair-use-and-public
American Library Association, “Libraries applaud dismissal of Google Book search case.” http://www.ala.org/news/node/9704