A Good Day at the Googleplex

"Judge Chin has issued his decision in the Google Book Search case, and it’s a win for Google. For those of you who have been following the litigation, it’s been a long trip through the arcana of class certification. Today’s decision, however, finally gets to the merits of Google’s fair use defense under the Copyright Act. The outcome is not surprising in light of last year’s decision in the related HathiTrust case, which held that Google’s mass digitization of books on behalf of academic libraries to facilitate scholarship and research and to aid print-disabled library patrons is fair use. The Google Books case could have come out differently, however, given that Google, unlike an academic library, is a commercial enterprise and that the service it provides through Book Search reaches far beyond an academic audience. In addition, the amount of text that Google displays in Book Search results (multiple contextual “snippets” including the search term) is greater than the amount displayed by the HathiTrust (only the page numbers and number of hits per page for the search term). Both of those factors—the commercial or non-profit nature of the use and the amount of text displayed—are relevant to the fair use analysis.     A court considering the fair use defense to a claim of infringement is required by statute to analyze and weigh four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of portion borrowed in relation to the original work as a whole; and (4) the effect of the borrowing on the market for, or value of, the original work. Courts also consider, in a more holistic way, whether the use in question furthers the underlying purpose of the copyright system to promote learning and the advancement of knowledge ..."