BREAKING: 2nd Circuit confirms that Google Books Library Project is fair use

As IPKat readers may remember, since 2004 Google has scanned more than 20 million books in their entirety (with approximately 93% of books being non-fiction, and the great majority of works being out-of-commerce), and delivered digital copies to participating libraries, created an electronic database of books, and made text available for online searching through the use of snippets [users can search the full text of all the books in the corpus, although it is not possible to view a complete copy of a snippet-view book]. 

Some libraries agreed to allow Google to scan only public domain works, but others also permitted the scanning of in-copyright content. Overall, libraries agreed to abide by the copyright laws with respect to the copies they make.

Litigation ensued between the Association of American Publishers (AAP) and the Authors' Guild on the one hand, and Google on the other hand. 

In 2012 the AAP and Google concluded a settlement agreement [here and here], but this did not affect the ongoing litigation between the Authors' Guild and Google.

Nearly two years ago Judge Chin of the US District Court for the Southern District of New York ruled that the Google Books Library Project was protected as fair use under §107 of the US Copyright Act [see here, here, and here].

The Authors Guild appealed the decision of the District Court, claiming among other things that: 

• Google's digital copying of entire books, allowing users through the snippet function to read portions, would not be a transformative use within the meaning of Campbell, and would instead provide a substitute for the original works; 
• notwithstanding that Google provides public access to the search and snippet functions without charge and without advertising, its ultimate commercial profit motivation and its derivation of revenue from its dominance of the world-wide Internet search market to which the books project contributes, would preclude a finding of fair use.

Today the US Court of Appeals for the 2nd Circuit delivered its judgment, and CONFIRMED the decision of Judge Chin, ie that the scanning activities of Google within its Library Project are to be considered a fair use of copyright works.

The Court held among other things that Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about the plaintiffs’ books without providing the public with a substantial substitute for matter protected by the plaintiffs’ copyright interests in the original works or derivatives of them. 

A more detailed analysis of the decision will follow soon: stay tuned!