The US Court of Appeals for the Second Circuit has handed down the ruling that the Google Books project does not infringe the authors’ copyrights in their various works. Under Author’s Guild v. Google. Inc., docket no. 13-4829-cv, the Google Book project falls under the fair use doctrine.
The fair use doctrine is about the grayest of all gray areas of law. The idea behind it, of course, is that there are uses for which no permission from the copyright holder is needed to use the copyrighted work. 17 USC 107 lays out the groundwork for the fair use analysis. The work can be used without infringement for purposes “…such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The statue also lays out the four factors that come into play when analyzing whether a use is fair use or not:
“(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.”
No one factor is determinative; the results of the factors are looked at as a whole, then the judge is required to make a decision based on that analysis of the four factors taken together. This makes fair use an incredibly case-specific determination. There is no really good way to tell beforehand whether a particular use is fair use or not.
Evidently, Google Books’ use of many, many copyrighted works is fair use. I wonder whether this decision might be motivated in part by the sheer volume of copyright infringement suits that could be brought against Google if the decision had come down differently? Sometimes, federal judges can be pragmatic; the volume of copyright infringement suits that could hit the courts might indeed flood the court system since Google Books uses snippets from most published works of authorship. This influx of copyright infringement cases would interfere with other matters and completely clog the courts.