“Fair use is not your enemy”: Judge Leval on the Google Books decision at the London Book Fair

by Ellie Bishop

In 2004, Google launched its Google Library Project, and over the next ten years set about to create digital copies of tens-of-millions of books in co-operation with major libraries around the world. Through Google Books they publicised each title’s bibliographic information and made their contents searchable. In 2014, Judge Pierre Leval and the US Court of Appeals heard the case made by numerous authors against Google for copyright infringement. In this landmark decision Judge Leval found Google’s digital copying to be lawful under the US doctrine of fair use. 

It was at this year’s London Book Fair at the Charles Clarke Memorial Lecture that Judge Leval and Jon Baumgarten, a leading lawyer in copyright and trademark, debated the assets of fair use and Leval’s Google Books opinion.

Leval began the proceedings with a few interesting disclaimers. In the US the flexibility of a judge’s decision-making in copyright cases is both a blessing and a curse - no judge is “amenable to clear bright-line rules” and so no two cases are the same. The “factors that affect a decision are too numerous and varied” to guarantee any kind of predictability. There are four factors taken into consideration, but each of these are guidelines that are “illustrative not limitative.”

The fair use factors:

(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.

Judges also consider how far the secondary use of copyrighted material supports copyright’s “primary intended beneficiary - the public - whose access to knowledge copyright seeks to advance.” So, a fair use will support this purpose while also protecting the “author’s legitimate commercial interest to profit from [the] distribution” of their content. Here’s how Leval’s argument answered my own questions on this case:

Google Books doesn’t offer criticism or commentary on the copied work - aren’t they just making a huge amount of copyrighted material available without permission?

Leval found that Google’s use of the books to be transformative. He argues that by presenting only bibliographic information about each book as well as limited and sporadic content within the context of a research tool (that allows you to analyse the use of a word within a title as well as its use historically) Google has both created something new that doesn’t compete directly with the original material, and works towards the spread of public knowledge. 

Does Google profit directly from the copying?

Well, yes and no. Google is a profit-motivated commercial organisation, and Google Books certainly works to strengthen the value of their brand and their presence in the marketplace. But as of 2014 Google had never received any revenues as a direct result of the content shown on Google Books, including advertising. And, even “if Google indirectly reaps profits from the Google Books function” (which would be difficult to determine with accuracy), this wouldn’t prevent a finding of fair use because it would not outweigh the search engine’s transformative purpose. 

Google copied millions of books in their entirety - surely the scale and extent of copying alone is substantial enough to rule out fair use?

Not in the US. As Judge Leval notes in his opinion, the courts have repeatedly found it fair and reasonable to copy an entire work with “transformative purpose” that does not “offer a competing substitute for the original.” Google Books’ “snippet view” function allows you to see up to three randomly selected examples of where the word you’ve searched appears in the text itself - a snippet being only a couple of sentences (or and 8th of a page). Google has since offered copyright holders the ability to opt out of snippet view. Moreover, the digital full-text copies are protected by the same software that Google uses to secure their own confidential information, minimising the risk of piracy. 

So with all this in mind, Leval found that in spite of the whole book being copied, a search result cannot reveal enough of the book to constitute a viable marketplace substitute that would damage the copyright holder’s revenues, and, the transformative use of the copyrighted material remains strong. 

Isn’t it possible that researchers may choose not to buy an author’s book is their Google Books search result satisfied their need, resulting in a loss of revenue for the rights holder(s)?

The courts recognised that this snippet search function might result in some loss of sales, but this speculative possibility that a small loss of sales may occur was not enough to outweigh the all-important fourth factor: the use of the copyrighted material having a meaningful or significant effect upon the potential market for the original work: “...the normal purchase price of a book is relatively low in relation to the cost of manpower needed to secure an arbitrary assortment of randomly selected snippets…[this] does not give searchers access to effectively competing substitutes.”

All seems fair and reasonable as Judge Leval resigns the stage and Jon Baumgarten approaches his post for rebuttal. In a slightly less structured, but a more heartfelt response, Baumgarten makes a few salient points that are worth considering:

While the tradition of copyright is premised on a reproduction right - the right to make copies - this premise “should not minimise [the impact of] unauthorised reproductions.” Baumgarten felt that the courts massively overlooked the sheer quantity of whole-text copying that had taken place without permission.

Moreover, he saw Google Books decision as a “justification for the subordination of copying itself,” and by relying on their opt out policy for the snippet view function they encourage a “take first and ask and negotiate later” attitude. By offering compensation to the plaintiffs in cases where no fair use is found effectively works as “forced licensing” for the rights holder.

Because “[US] reproduction law is not bound by public distribution” the mass “public exposure of copy” by Google is made possible. In this way Google purposefully and systematically “enterprises copy far outside the sense and spirit of fair use.”

Jon Baumgarten’s response ultimately left me feeling uncomfortable with Leval’s opinion, which had previously convinced me. However, in the courtroom, how do you measure cases by a “sense and spirit” of fair use?

The most significant issue that Baumgarten takes with this case is the reverberation Leval’s decision will have throughout future copyright cases - this case has likely set new standards for the doctrine that supposedly works to none. 

Edited by .(JavaScript must be enabled to view this email address) on 30 Mar 2017 around 7pm