Google Books case illustrates the four factors of fair use

In November 2013, U.S. Circuit Judge Denny Chin hastened the end of years of legal wrangling over the legality of Google’s scanning and indexing of copyrighted works for its Google Books project. In Authors Guild, Inc. v. Google Inc., SDNY, No. 05 Civ. 8136 (DC), Judge Chin ruled that Google’s work amounted to “fair use” of the books.

“Fair use” is an exception to a copyright holder’s exclusive right to the use of a protected work. The United States Code specifies four factors that shall be analyzed when determining whether a particular use of a work is fair use. The four factors are:

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
4. The effect of the use upon the potential market for or value of the copyrighted work

Judge Chin found that Google prevailed handily on three of the four fair use factors and lost narrowly on one.

With respect to the “purpose and character of the use,” Judge Chin found that Google Books helps people find books and facilitates data mining, “thereby opening up new fields of research.”

Noting that works of fiction merit more careful consideration of copyright, Judge Chin pointed out that 93% of the works in Google Books are nonfiction, which indicates fair use.

The judge acknowledged several conflicting factors concerning the “amount and substantiality of the portion used.” First, Google makes complete copies of the works, which were duplicated across its servers. Judge Chin said that did not necessarily preclude fair use, and that in any case, Google limits the amount of text displayed in response to any search. Still, Judge Chin held that the third factor weighed “slightly against a finding of fair use.”

Judge Chin held that the fourth factor, the effect of the use upon the market or value of the product, weighed strongly in Google’s favor. He noted that although Google Books could drive traffic to Google’s other websites, the company does not directly commercialize the copyrighted works. It does not sell the full scans or the snippets presented to users, nor does it run ads on the pages containing snippets.

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