The Authors Guild v. Google, Inc.

Filing 150

AMICUS BRIEF, on behalf of Amicus Curiae Authors Alliance, FILED. Service date 07/10/2014 by CM/ECF. [1268217] [13-4829]--[Edited 07/11/2014 by KG]

13-4829-cv
United States Court of Appeals
for the

Second Circuit
THE AUTHORS GUILD, BETTY MILES, JIM BOUTON, JOSEPH
GOULDEN, individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
HERBERT MITGANG, DANIEL HOFFMAN, individually and on behalf
of all others similarly situated, PAUL DICKSON, THE MCGRAW-HILL
COMPANIES, INC., PEARSON EDUCATION, INC., SIMON & SCHUSTER,
INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., CANADIAN
STANDARD ASSOCIATION, JOHN WILEY & SONS, INC., individually
and on behalf of all others similarly situated,
Plaintiffs,
– v. –
GOOGLE, INC.,
Defendant-Appellee.
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR AMICUS CURIAE AUTHORS ALLIANCE IN
SUPPORT OF DEFENDANT-APPELLEE AND AFFIRMANCE

On the Brief:
PAMELA SAMUELSON
DAVID HANSEN

JENNIFER M. URBAN
SAMUELSON LAW, TECHNOLOGY
& PUBLIC POLICY CLINIC
UNIVERSITY OF CALIFORNIA,
BERKELEY, SCHOOL OF LAW
Attorney for Amicus Curiae
396 Simon Hall
Berkeley, California 94720
[phone]

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amicus Curiae
Authors Alliance, a private non-governmental party, certifies that it has no parent
corporation and that no other company owns 10% or more of its stock.

1

TABLE OF CONTENTS
TABLE OF AUTHORITIES .....................................................................................3
INTEREST OF AMICUS ..........................................................................................7
PRELIMINARY STATEMENT ...............................................................................9
SUMMARY OF ARGUMENT ...............................................................................12
ARGUMENT ...........................................................................................................16
I. Because Snippets Make Books More Discoverable, Book Search Has a
Transformative Purpose........................................................................................16
II. Authors of Books Typically Found in Major Research Library Collections
Want Their Books to Be Found Through Full-text Searchable Databases. .........20
A. Book Search Rescues Works from Oblivion in Print Library Collections
and Makes them Findable, Which is What Authors Want ...............................23
B. Because It Makes Books More Discoverable, Book Search is Likely to
Increase Demand for Those Books. ..................................................................26
III. The Clear Social Benefits of Book Search for Authors and the Public Are
Relevant to Fair Use .............................................................................................30
Conclusion ...............................................................................................................36
CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) .......................................38

2

TABLE OF AUTHORITIES
Cases

Page(s)

A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001) ............................................................................35
A.V. ex rel. Venderhye v. iParadigms, LLC,
562 F.3d 630 (4th Cir. 2009) ..............................................................................17
Am. Geophysical Union v. Texaco Inc.,
802 F. Supp. 1 (S.D.N.Y. 1992), aff’d, 60 F.3d 913 (2d Cir. 1994)...................21
Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666 (S.D.N.Y. 2011) ................................................................22
Authors Guild, Inc. v. Google Inc.,
954 F. Supp. 2d 282 (S.D.N.Y. 2013) .........................................................passim
Authors Guild, Inc. v. HathiTrust,
902 F. Supp. 2d 445 (S.D.N.Y. 2012) ................................................................30
Authors Guild, Inc. v. HathiTrust,
No. 12-4547-cv, slip op. (2d Cir. June 14, 2010) ........................................passim
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) ...............................................................................30
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ................................................................................17, 26, 30
Field v. Google Inc.,
412 F. Supp. 2d 1106 (D. Nev. 2006).................................................................34
Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539 (1985) ......................................................................................14, 22
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2002) ..................................................................17, 28, 34
MCA, Inc. v. Wilson,
677 F.2d 180 (2d Cir. 1981) ...............................................................................31
MGM Studios, Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005) ............................................................................................35

3

Nunez v. Caribbean Int’l News Corp.,
235 F.3d 18 (1st Cir. 2000) .................................................................................28
Perfect10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ......................................................................17, 34
Sega Enterprises Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1992) ............................................................................31
Statutes and Other Authorities
17 U.S.C. 501(a) (2012) ...........................................................................................12
Fed. R. App. P. 26.1 ...................................................................................................1
Fed. R. App. P. 29(a) .................................................................................................7
Fed. R. App. P. 29(c)(4) .............................................................................................7
Fed. R. App. P. 29(c)(5) .............................................................................................7
Fed. R. App. P. 29.1 ...................................................................................................7
Alan Latman, Fair Use of Copyrighted Works 15 (1958), reprinted as
Study No. 14 in Copyright Law Revision Studies Nos. 14-16,
prepared for the Senate Committee on the Judiciary, 86th Cong., 2d
Sess., 7 (1960) .....................................................................................................22
Allen Kent et al., USE OF LIBRARY MATERIALS: THE UNIVERSITY OF
PITTSBURGH STUDY (1979) .................................................................................24
Arnold Plant, The Economic Aspects of Copyright in Books, 1 (New
Series) ECONOMICA 167, 169 (1934) ..................................................................21
BLUE RIBBON COMM’N ON SUSTAINABLE DIGITAL PRESERVATION AND
ACCESS, FINAL REPORT: SUSTAINABLE ECONOMICS FOR A DIGITAL
PLANET: ENSURING LONG TERM ACCESS TO DIGITAL INFORMATION
(Feb. 2010) ..........................................................................................................33
Brian Lavoie & Lorcan Dempsey, Beyond 1923: Characteristics of
Potentially In-copyright Print Books in Library Collections, D-LIB
MAGAZINE, NOVEMBER/DECEMBER 2009, http://www.dlib.org/dlib/
november09/lavoie/11lavoie.html ......................................................................21

4

CORNELL UNIVERSITY LIBRARY, REPORT OF THE COLLECTION
DEVELOPMENT EXECUTIVE COMMITTEE TASK FORCE ON PRINT
COLLECTION USAGE 2 (2010), http://staffweb.library.cornell.edu/

system/files/CollectionUsageTF_ReportFinal11-22-10.pdf ..............................25
Harold Varmus, The Art and Politics of Science (W.W. Norton 2009) ................... 8
Mary Sue Coleman, Google, the Khmer Rouge and the Public Good,
Address to the Professional/Scholarly Publishing Division of the
Association of American Publishers 2 (Feb. 6, 2006),
http://president.umich.edu/speech/archive/MSC_AAP_Google_addre
ss.pdf ...................................................................................................................25
Mary Sue Coleman, Riches We Must Share, WASH. POST, Oct. 25, 2005,
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/21/
AR2005102101451.html...............................................................................26, 32
MATTHEW JOCKERS, MACROANALYSIS: DIGITAL METHODS AND
LITERARY HISTORY (Univ. Illinois Press, 2013) .................................................32
Paul Courant, Federal Deficits: America’s Great Consumption Binge
(Prentice Hall 1986) ..............................................................................................8
Paul J. Heald, How Copyright Keeps Works Disappeared, 11 J.
EMPIRICAL L. STUDIES (forthcoming 2014), http://ssrn.com/
abstract=2290181 ................................................................................................29
Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105,
1111 (1990) .........................................................................................................36
R. Anthony Reese, What Copyright Owes to the Future, 50 HOUSTON L.
REV. 287, 289-91 (2012).....................................................................................33
Robert Darnton, Mesmerism and the End of the Enlightenment in France
(Harv. Univ. Press 1968) ......................................................................................8
Robert Pinsky’s, Sadness and Happiness (Princeton Univ. Press 1975) .................. 8
Shahren Ahmad Zaidi Adruce, Academic Authors’ Perception on
Copyright Protection 149-50 (March 11, 2004) .................................................21

5

Sidonie Smith, Human Rights and Narrated Lives: The Ethics of
Recognition (Palgrave/Macmillan, 2004) ............................................................. 8
U.S. Bureau of Labor Statistics, May 2013 National Occupational
Employment and Wage Estimates, http://www.bls.gov/oes/current/
oes_nat.htm#25-0000 (last updated April 1, 2014) ............................................10

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INTEREST OF AMICUS
Amicus Curiae Authors Alliance is a 501(c)(3) nonprofit organization whose
mission is to further the public interest in facilitating widespread access to works
of authorship by assisting and representing authors who want to disseminate
knowledge and products of the imagination broadly. 1 Hence its motto: “Promoting
authorship for the public good by supporting authors who write to be read.” The
advent of global digital networks provides authors with unprecedented
opportunities to reach new readers. Authors Alliance represents authors who want
to harness this potential.
Officially launched in May 2014, Authors Alliance currently has over 400
members. A majority of members are academic authors, but the Alliance also
serves a growing number of creative writers, journalists, and other authors who
share its mission. Its Advisory Board includes two Nobel Laureates, a Poet
Laureate of the United States, three MacArthur Fellows, distinguished professors

1

Pursuant to Fed. R. App. P. 29(c)(5) and Rule 29.1 of the Local Rules of the
United States Court of Appeals for the Second Circuit, Amicus states that none of
the parties to this case nor their counsel authored this brief in whole or in part; no
party or any party’s counsel contributed money intended to fund preparing or
submitting the brief; and no one else other than Amicus, its members, or its
counsel contributed money that was intended to fund preparing or submitting this
brief.
Pursuant to Fed. R. App. P. 29(c)(4) and 29(a), Amicus states that all parties have
consented to the filing of this brief, and we rely on that consent as our source of
authority to file.
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from major universities with expertise in a wide variety of fields, and several
prominent independent professional writers and visionaries.2
The Authors Alliance has an interest in this litigation because the
dismantling of Book Search would be harmful to its mission of helping authors
reach readers. Book Search is an important tool through which our members can
reach wider audiences. Many Authors Alliance members are authors of the sort of
books Google scanned most often for Book Search, which are those typically
found in research library collections. Consider, for example, books created by
some of the authors who serve on the Authors Alliance Advisory Board. Nine of
Harvard historian Robert Darnton’s books are discoverable through Book Search,
including Mesmerism and the End of the Enlightenment in France (Harv. Univ.
Press 1968). Five books authored by Michigan economist Paul Courant can be
found, including Federal Deficits: America’s Great Consumption Binge (Prentice
Hall 1986). Four of former Poet Laureate Robert Pinsky’s books can be located,
including Sadness and Happiness (Princeton Univ. Press 1975). Three books by
former Modern Language Association (MLA) President Sidonie Smith can be
found, including Human Rights and Narrated Lives: The Ethics of Recognition
(Palgrave/Macmillan, 2004). Also findable through Book Search is The Art and
Politics of Science (W.W. Norton 2009) by Nobel Laureate Harold Varmus. These
2

Information about the Authors Alliance and its Advisory Board can be found at
http://www.authorsalliance.org.
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are but a few examples of the many hundreds of books authored by Authors
Alliance members that can be found through Book Search.
Book Search also makes it possible for the many who lack physical access to
research library collections to discover that our members’ works exist. Interested
researchers should be able to find easily the ideas and contributions to human
knowledge contained in books; researchers can then learn more by buying or
borrowing those books. The Authors Alliance represents authors who want their
intellectual legacies to extend to new generations of readers, including the many
who now search and find books almost exclusively online. Creation of a full-text
searchable database of books makes these benefits possible.
PRELIMINARY STATEMENT
Reaching potential readers today and for generations to come is a foremost
goal—and a growing challenge—for authors who write in order to make enduring
contributions to knowledge and culture. Tools that allow potential readers to
perform full-text searches reveal the relevance of these authors’ books. This
promotes both the progress of science and useful arts and the personal interests of
academics and many professional writers outside the academy.
The overwhelming majority of books that Google has scanned from
university research library collections are non-fiction works, dense with
knowledge, written by academic authors in the hope and expectation that they will

9

be read by others and contribute to the ongoing progress of knowledge creation and
dissemination. Most of the over 1.5 million post-secondary educators in the United
States are expected regularly to produce scholarly works that will end up in
research library collections.3 Although the Authors Alliance is only a few months
old, hundreds of these authors have already become members.
Historically, research libraries have been the principal market for scholarly
books. Academic authors, in particular, have been grateful that libraries have
purchased their books, indexed and shelved them to ensure their availability, and
preserved them so that future generations will be able to learn from the knowledge
and insights embedded in them. Research libraries make the research of the past
and the present accessible for those who wish to help advance knowledge at
present and in the future.
The principal motivation of academic authors who write books primarily
bought by research libraries is to communicate knowledge to an audience of
readers eager to acquire understanding of a particular domain. For these authors, a
full-text search tool like Book Search is a boon—such tools make it possible for
interested researchers to discover that their books exist, that the books contain

3

See U.S. Bureau of Labor Statistics, May 2013 National Occupational
Employment and Wage Estimates, http://www.bls.gov/oes/current/oes_nat.htm#250000 (last updated April 1, 2014) (Occupational Code 25-1000, “Postsecondary
teachers”).
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information relevant to queries that researchers are making, and that the books can
be found in library collections or possibly purchased.
These authors generally fear oblivion more than piracy. Academic authors
often spend several years producing monographs that they hope will contribute to
scholarly discourse, including after their own careers end. Conventional research
library catalogs help readers to find some books, but they provide only limited
information about the books in the libraries’ collections and fall short of ensuring
the long-term intellectual legacies of the books’ authors. Full-text search databases
such as Google Book Search and HathiTrust do considerably more to stave off
scholarly oblivion. These services give authors new hope that their books will find
readers, contribute to scholarly discourse, and promote the ongoing progress of
knowledge. This is as the Founders intended when they authorized Congress to
enact a copyright law.
Perhaps best-selling Authors Guild members such as Scott Turow and
Malcolm Gladwell do not need full-text search tools to reach their audiences. Their
publishers provide extensive resources to market their works, and their well-known
names may provide market cachet. But Turow and Gladwell are not typical
authors. In addition to academic authors, many lesser-known professional writers
are likely to benefit from full-text search tools. Indeed, as described below, Hal
Poret’s expert report in this case indicates that well over half of the 880

11

professional writers surveyed affirmatively approved of Book Search snippets,
almost half thought that Book Search snippets would help sales of their books, and
only a tiny minority (four percent) thought that Book Search snippets would be
harmful.
Despite the many benefits that Book Search provides for authors and
readers, the Authors Guild and a small number of its members have been seeking a
windfall award of $3 billion in statutory damages for the copying of scholarly
books from research library collections in which very few of the Guild’s members
actually own copyright interests.4 The Guild and its co-plaintiffs are further
seeking injunctive relief to remove Book Search from the Internet, a sweeping
remedy that would harm the interests of authors who want readers to find their
books.
To prevent this harmful result, this Court should affirm the District Court’s
ruling in favor of Google’s fair use defense.
SUMMARY OF ARGUMENT
Book Search makes fair uses of the books in its corpus because the primary
purpose of the Book Search database is to make books more findable. This purpose
4

The Second Circuit recently decided that the Authors Guild lacked statutory
standing to sue for copyright infringement as an associational plaintiff because
they did not hold “legal or beneficial interest[s]” in the copyrights at issue in that
case. Authors Guild, Inc. v. HathiTrust, No. 12-4547-cv, slip op. at 12 (2d Cir.
June 14, 2010), (citing 17 U.S.C. 501(a) (2012)). Based on that ruling, Amicus
questions whether the Authors Guild has associational standing in this case.
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favors fair use for three reasons: first, because Google’s method of making books
more findable—including displaying snippets of text—represents a significant
transformative use that is unlikely to serve as a substitute for the original works;
second, because Google Books does precisely what authors of books in research
library collections want for their books in rescuing them from obscurity in print
library collections and making them more discoverable online; and third, because
by making knowledge more accessible, Google Books provides broad social
benefits to both authors and the public.
The Second Circuit recently held in Authors Guild, Inc. v. HathiTrust that
digitizing books for the purpose of creating a searchable database is a
“quintessentially transformative use.” HathiTrust, Slip. Op. at 18. This case is
similar to HathiTrust in many important respects. The principal difference is that
Book Search displays snippets of text in response to user search queries, whereas
HathiTrust offers only identifying information about books responsive to the query
and page numbers where the references can be found.
There are four reasons why Book Search snippet views do not undermine
Google’s fair use defense. First, snippets serve as pointers to information, akin to
the “thumbnail” size images in prior search engine cases. Second, most non-expert
Internet users of Book Search will need snippets to decide whether the search
results are genuinely relevant to their queries because they are generally less

13

skilled researchers than the typical users of the HathiTrust database. Third, Google
has been careful to design Book Search to avoid supplanting demand for books
responsive to search queries by including only small portions of responsive text in
snippet views. Fourth, snippet views help readers find books and their authors; this
is likely to enhance demand for books relevant to search queries, as the District
Court rightly concluded. Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282,
291 (S.D.N.Y. 2013).
The fairness of a use can sometimes best be evaluated, as the Supreme Court
noted in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539
(1985), by assessing whether the use would likely be acceptable from the point of
view of the “reasonable copyright owner.” Id. at 550. Reasonable authors of works
typically found in research library collections are likely to applaud Book Search
because it may rescue their works from oblivion in research library stacks and
connect the works to new audiences. These authors want their works to be found,
and to be used in ways that will establish their reputations and intellectual legacies.
Book Search’s use of books in research library collections, if anything,
enhances the market for those books. It certainly does not supplant that market.
The District Court correctly found that snippet views are highly implausible
substitutes for the originals; a user would be hard pressed to recreate a meaningful,
readable portion of a work by running snippet view searches and aggregating the

14

results. In a survey of professional writers on their views about Book Search, the
vast majority agreed that snippets posed no risk of substitution. Decl. of Hal Poret
in Opp’n to Pls.’ Mot. for Class Certification, Ex. 1, at 23 (D. Ct. Dkt. No. 10011). Book Search is far more likely to have a positive effect on the market for
books, as the District Court correctly concluded. See Google, 954 F. Supp. 2d at
288. For many works—especially out-of-print titles that currently have little hope
of being resurrected by publishers—the increased visibility and enhanced search
capability of Book Search offers hope that users will discover these forgotten
works and demonstrate their current usefulness.
Finally, Book Search offers important public benefits that weigh in favor of
fair use. The District Court correctly identified five significant social benefits,
including creating new ways for users to find books, facilitating new forms of
research through text and data-mining, expanding access to books, helping to
preserve books, and generating new audiences and new sources of income for
authors and publishers by helping readers find books. See Google, 954 F. Supp. 2d
at 287-88.
The District Court correctly considered these public benefits, consistent with
Second Circuit and Supreme Court precedents that direct courts to weigh the fair
use factors together in light of the purposes of copyright. In discussing the above
five benefits and making its overall fair use assessment, the District Court

15

concluded that Book Search “advances the progress of the arts and sciences, while
maintaining respectful consideration for the rights of authors and other creative
individuals,” Google Inc., 954 F. Supp. 2d at 293. We heartily agree. We therefore
respectfully request that this Court uphold the District Court’s fair use ruling.
ARGUMENT
I.
Because Snippets Make Books More Discoverable, Book Search Has a
Transformative Purpose.
This Circuit recently upheld HathiTrust’s fair use defense for creating a fulltext searchable database that enables researchers to find relevant books in response
to their search queries. HathiTrust, slip op. at 6-7, 18-26. This case is similar to
HathiTrust in many important respects: Both cases involve the creation of a fulltext searchable database of mostly scholarly books (to a large extent, the very same
books); the databases and their search capabilities could not have been created
without scanning the entirety of the works; the databases are transformative
because they were created for a very different purpose from the originals, namely,
to enhance public access to knowledge by making books more findable; and the
harms the Authors Guild alleges are speculative.
There are two principal differences between the HathiTrust case and the fair
use defense now before this court. First, HathiTrust is a nonprofit library affiliated
with numerous major university research libraries, whereas Google is a for-profit
company. Second, word searches conducted on the HathiTrust database yield only
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identifying information about books that contain the search terms and page
numbers where the references can be found, whereas Google provides a small
number of snippets of text from books responsive to user search queries.
The commerciality point is easily dispensed with. In Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569 (1994), the Supreme Court explained that “the more
transformative the new work, the less will be the significance of other factors, like
commercialism, that may weigh against a finding of fair use.” Id. at 569. This
Circuit has already recognized that full-text search is a “quintessentially
transformative” use. HathiTrust, slip op. at 18. The court in HathiTrust also cited
approvingly to prior search engine cases in which transformative fair use defenses
prevailed, despite the commercial nature of the defendants. HathiTrust, slip op. at
15, 19.5 As in those cases, the uses in this case are highly transformative;
commerciality should be given little weight.
Consistent with those decisions, the District Court acknowledged that
“Google is a for-profit entity and Google Books is largely a commercial
enterprise.” Google Inc., 954 F.Supp.2d at 291. But the court noted that Google

5

See Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19 (9th Cir. 2002) (search
engine’s transformative purpose in providing “thumbnail” images to enable users
to find images on the Internet outweighed commercial purpose); accord Perfect10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1166 (9th Cir. 2007); A.V. ex rel.
Venderhye v. iParadigms, LLC, 562 F.3d 630, 638-39 (4th Cir. 2009) (commercial
nature of plagiarism detection software did not override transformative uses of the
works at issue in fair use analysis).
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“does not engage in the direct commercialization of copyrighted works.” Id. More
important was the “highly transformative” nature of Google’s use. Book Search
“transforms expressive text into a comprehensive word index that helps readers,
scholars, researchers and others find books.” Id. at 292. In addition, Book Search
transforms book texts “into data for purposes of substantive research” to enable
data-mining “opening up new fields of research.” Id. As in HathiTrust, “by
enabling full-text search,” Book Search “adds to the original something new with a
different purpose and a different character,” HathiTrust, slip op. at 19, namely,
providing tools that help readers conduct new kinds of research and find authors’
books.
Unlike HathiTrust, Google does provide snippet views of text in response to
search queries. The court in HathiTrust took note of the fact that HathiTrust “does
not allow users to view any portion of the books they are searching.” Id. at 18.
Book Search snippet views do permit users to view some expression from
in-copyright works, but this does not undermine Google’s fair use defense. There
are at least four reasons why. First, snippets serve as pointers that help researchers
identify responsive results, akin to the “thumbnail” size images in the image search
engine cases cited approvingly in HathiTrust. Id. at 15, 19.
Second, most users of Book Search will need snippets to decide whether the
search results are really relevant to their queries. Non-expert Internet researchers

18

typically lack the specialized research training characteristic of users of HathiTrust
and traditional research libraries. Experienced academic researchers looking for
books that discuss, for example, “anaphylactic shock” will likely already be
familiar with that term and with at least some literature on the subject. They will
typically have trained research skills and be more motivated to use sophisticated
search tools, such as library subject headings, to find books on shelves. By
contrast, the general population that uses Google’s search engine may be less
knowledgeable about their query topics, have less training in research techniques,
and have greater need of snippets to help them know if they have found the books
or information they are looking for.
Even for experienced researchers, snippet views provide more useful search
results than simple page number references because snippets provide context and
meaning to results. A snippet view search for the term “copyright” within a given
book will, for instance, quickly reveal by surrounding content whether the book
actually discusses copyright law or merely contains non-responsive instances of
the word “copyright,” such as a copyright notice on the book’s cover page.
Third, Google has been careful to design Book Search to avoid supplanting
demand for originals. Snippets are just that—very small amounts of text
surrounding the words in a search query. Further, Book Search does not display the
contents of certain types of books (e.g., dictionaries, reference books, and recipe

19

collections) at all, to avoid supplanting demand for copies of the original. Google
has designed Book Search to protect against abusive snippet searches that might
enable re-creation of much of the text of the works. And rightsholders who object
to snippet views can ask for the snippet feature to be unavailable for their works.
JA396, ¶ 5.
Fourth, snippet views help readers find relevant books and their authors. As
the District Court rightly concluded, this is more likely to enhance demand for the
books than to supplant that demand. Google, 954 F. Supp.2d at 292-93. Indeed,
because snippet view helps Book Search provide more responsive results to a
broader and more generalist audience, it is likely to better enhance demand than
would a service that provides context-free text search results.
II.
Authors of Books Typically Found in Major Research Library
Collections Want Their Books to Be Found Through Full-text Searchable
Databases.
The overwhelming majority of books in the Book Search database are from
the collections of leading university research libraries, such as those at Harvard,
Stanford, Cornell, University of Michigan, and University of California. These
research libraries have built their collections over many decades largely by buying
scholarly works produced by academic authors. A study of several research library
contributors to the Book Search Project reveals that over 93% of the titles are
nonfiction, and 78% of these nonfiction titles are aimed at a scholarly audience.

20

See Brian Lavoie & Lorcan Dempsey, Beyond 1923: Characteristics of Potentially
In-copyright Print Books in Library Collections, D-LIB MAGAZINE,
NOVEMBER/DECEMBER 2009,
http://www.dlib.org/dlib/november09/lavoie/11lavoie.html.
Another survey considered the motivations of academic authors in creating
works of authorship. Its author reported that “academic authors are not primarily
motivated by monetary rewards when they write/create works. . . . Academic
authors who are motivated in this context write/create . . . to get appreciation, to
get acknowledgement, to gain recognition and popularity, and to leave an
intellectual legacy to others.” Shahren Ahmad Zaidi Adruce, Academic Authors’
Perception on Copyright Protection 149-50 (March 11, 2004) (Ph.D. Dissertation,
Syracuse University) (available via ProQuest). These motivations have been
widely recognized for a long time. See, e.g., Arnold Plant, The Economic Aspects
of Copyright in Books, 1 (New Series) ECONOMICA 167, 169 (1934) (observing that
many authors, especially academics, write “to secure publicity for their
contributions to our literary heritage without financial subsidy from themselves.”);
Am. Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (S.D.N.Y. 1992) (Leval,
J.) (“[G]enerally [academic] authors have a far greater interest in the wide
dissemination of their works than in royalties”), aff’d, 60 F.3d 913 (2d Cir. 1994).

21

The District Court in an earlier proceeding in this case recognized the
generally nonmonetary motivations of academic authors. It rejected a proposed
settlement of this litigation in part because the Authors Guild and its members had
inadequately represented the interests of academic authors, noting that academic
authors, almost by definition, are committed to advancing knowledge, not
maximizing profits, as the Authors Guild is. Authors Guild v. Google, Inc., 770 F.
Supp. 2d 666, 679 (S.D.N.Y. 2011).
To understand the very substantial benefits that the Book Search database
provides to the authors of works most typically found within scanned collections, it
is important to consider the database’s unique makeup. The Supreme Court in
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985),
observed that the fair use inquiry may turn on evaluating the “‘importance of the
material copied or performed from the point of view of the reasonable copyright
owner. In other words, would the reasonable copyright owner have consented to
the use?’” Harper & Row Publishers, Inc. 471 U.S. at 550 (quoting Alan Latman,
Fair Use of Copyrighted Works 15 (1958), reprinted as Study No. 14 in Copyright
Law Revision Studies Nos. 14-16, prepared for the Senate Committee on the
Judiciary, 86th Cong., 2d Sess., 7 (1960)). Authors Alliance believes that the
authors of books in the Book Search database would generally consent to this use.

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Authors generally want readers to find their books, and that is precisely what Book
Search enables.
A.
Book Search Rescues Works from Oblivion in Print Library
Collections and Makes them Findable, Which is What Authors Want
Virtually all authors want their books to be found and to be read. This is the
main purpose of Book Search. Book Search helps readers locate books containing
the information they seek; Book Search thus helps authors find readers who are
searching for the knowledge their books contain. The strongest reason why fair use
should apply here is because Book Search helps to connect authors and readers.
Book Search is a much more comprehensive tool for connecting authors and
readers than are traditional library catalogs. Library catalogs are notoriously literal.
A minor misspelling of a book title or author’s name in a card catalog entry may
result in a specific book becoming undiscoverable. Moreover, even researchers
using modern online catalogs may fail to find a book if they do not know the
correct spelling of the author’s name or the book’s title. For example, a library
catalog search for the titles of two important works of the twentieth century, The
Souls of Black Folk or The Folklore of Capitalism, may yield no results if the
catalog entry contains a likely mistake (an omitted “s” or a misplaced plural,
respectively) or the researcher misremembered the title. While truly persistent
researchers with enough information could eventually find these seminal works of
W.E.B. DuBois and Thurman Arnold using the authors’ names, Google’s full-text
23

indexing retrieves the books, along with hundreds of others that discuss them,
because Google has developed technologies that help users find what they are
looking for even if they misspell some words.
Without electronic indexes like Google, readers are forced to grope through
library holdings with well-used but ultimately inefficient discovery tools. Libraries
have devised many ways to search for books using card catalogs, subject indexes,
and online library catalogs, but information about and within print books remains
relatively inaccessible for all but the expert.
Authors want their works to be found, not languish unread. This is a serious
risk for books typically found in the research collections that form the core of the
Book Search database. In 1979, the University of Pittsburgh published a study on
uses of its research library, which is one of the largest in the world. The study
reported what many already suspected: a large number of books are collected in
print but seldom found and used. The report indicated that 40% of books that
Pittsburgh had purchased in the previous ten years had never circulated. Of those,
the study concluded that fewer than 2% would ever be checked out at all. ALLEN
KENT ET AL., USE OF LIBRARY MATERIALS: THE UNIVERSITY OF PITTSBURGH STUDY
(1979).
The same story sadly holds true today: despite advances in cataloging,
Cornell University reported that approximately 55% of the monographs in its

24

collection published since 1990 had never circulated. CORNELL UNIVERSITY
LIBRARY, REPORT OF THE COLLECTION DEVELOPMENT EXECUTIVE COMMITTEE
TASK FORCE ON PRINT COLLECTION USAGE 2 (2010),
http://staffweb.library.cornell.edu/system/files/CollectionUsageTF_ReportFinal1122-10.pdf.
Google’s use of research library holdings to overcome these challenges is
precisely what most authors would want. Indeed, the desire of scholars to make
works widely accessible is a foundational part of the universities’ agreements with
Google, all of which begin by explaining their mutual interest in “making
information available to the public.” See Joint Appendix, A-593, A-606, A-619, A630, A-645 (Google-Library Agreements with the University of Michigan,
University of California, University of Wisconsin-Madison, University of Virginia,
and the University of Texas at Austin).
The University of Michigan’s president, Mary Sue Coleman, explained the
opportunity that Book Search presented for a “university whose mission is to
create, to communicate, to preserve and to apply knowledge.” Mary Sue Coleman,
Google, the Khmer Rouge and the Public Good, Address to the
Professional/Scholarly Publishing Division of the Association of American
Publishers 2 (Feb. 6, 2006),
http://president.umich.edu/speech/archive/MSC_AAP_Google_address.pdf.

25

Coleman also explained a fear that many academics authors share about future
generations of researchers: “Students coming to my campus today belong to the
Net Generation. By the time they were in middle school, the Internet was a part of
their daily lives. As we watch the way our students search for and use information,
this much is clear: If information is not digitized, it will not be found.” Mary Sue
Coleman, Riches We Must Share, WASH. POST, Oct. 25, 2005,
http://www.washingtonpost.com/wpdyn/content/article/2005/10/21/AR2005102101451.html.
B.
Because It Makes Books More Discoverable, Book Search is Likely to
Increase Demand for Those Books.
The Campbell decision directs courts to distinguish the “fair use sheep from
the infringing goats” by considering whether the challenged use will supplant
demand for the original and thereby harm the market for the work. Campbell, 510
U.S. at 586-88. Book Search snippets could but rarely supplant demand for books
in which a search term is found. Snippets typically provide only enough context
around a relevant search term so that users can know whether a book is germane to
their query.
Someone using Book Search to locate a history of Buffalo, for instance, can
easily discern the need to refine his search if the first three Google results show
snippets from a book on buffalo herds in the nineteenth century instead of the city
in upstate New York. Relevant snippets may whet his appetite for books about that
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city, but to actually learn about its history, he must go to a library or purchase the
books.
Amicus agrees with the District Court’s conclusion that “a reasonable fact
finder could only find that Google Books enhances the sales of books to the benefit
of copyright holders.” Google Inc., 954 F. Supp.2d at 293. The court observed that
“[m]any authors have noted that online browsing in general and Google Books in
particular helps readers to find their work, thus increasing their audience,” and
because “Google provides convenient links to booksellers to make it easy for a
reader to order a book . . . , there can be no doubt but that Google Books improves
book sales.” Id.
The conclusion that Book Search likely improves book sales is supported not
only by the District Court’s sound reasoning, but also by the Expert Report of Hal
Poret who conducted a telephone survey of 880 professional writers about their
views of Book Search snippet views. Decl. of Hal Poret in Opp’n to Pls.’ Mot. for
Class Certification (D. Ct. Dkt. No. 1001). Forty-five percent of the respondents
thought that Book Search snippets would improve sales of their books, and another
fifty-one percent thought it would not harm them. Poret Decl., Ex. 1, at 23. Only
four percent thought snippet views would harm book sales. Id.
The District Court’s conclusion that Book Search will improve the market
for authors’ works is consistent with rulings in other cases in which courts have

27

recognized that transformative fair uses may enhance demand for the copyright
owner’s work. See Kelly, 336 F.3d at 821-22; Nunez v. Caribbean Int’l News
Corp., 235 F.3d 18, 25 (1st Cir. 2000) (citing other such cases).
Book Search may be especially helpful to authors of books published in the
mid- to late twentieth century. The overwhelming majority of these books
published before the 1990s are out of print, commercially unavailable, and earning
nothing for authors or their publishers. Publishers have so far had little incentive to
take a risk on resurrecting these out-of-print titles by paying the high costs of
reprinting them or converting them to digital form. Readers, in turn, have had few
ways to discover the existence of these works and create a demand for new
editions. It is perhaps for this reason that in-copyright books of the twentieth
century are some of the most poorly marketed and sold. Authors Alliance member
Paul Heald (Professor of Law at the University of Illinois) has demonstrated the
problem with this chart:

28

Paul J. Heald, How Copyright Keeps Works Disappeared, 11 J. Empirical L.
Studies (forthcoming 2014), http://ssrn.com/abstract=2290181. Heald reports on a
study of a random sample of 2,266 new editions of books available on
Amazon.com. The chart above depicts an estimate of the percentage of titles
available on Amazon by the date of original publication of the work. Heald’s
findings show that in-copyright books published in the middle of the twentieth
century are significantly less available than books from the late nineteenth and
early twentieth centuries that have now entered the public domain. For authors of
works published between 1923 and the 1990s, Book Search may be a rare ray of
hope that the books will be rediscovered and enjoy renewed demand.

29

III. The Clear Social Benefits of Book Search for Authors and the Public
Are Relevant to Fair Use
The District Court considered the social benefits of Book Search and
concluded that Book Search “advances the progress of the arts and sciences, while
maintaining respectful consideration for the rights of authors and other creative
individual,” Google, 954 F. Supp. 2d at 288,293. The District Court’s analysis was
correct in light of Campbell, in which the Supreme Court endorsed taking social
benefits that serve copyright’s constitutional purposes into account in fair use
cases. Campbell, 510 U.S. at 579. The Court noted that all factors “are to be
explored, and the results weighed together, in light of the purposes of copyright,”
Id. at 578.
Social benefits alone do not render a use transformative, as the Second
Circuit noted in HathiTrust, slip op. at 17. The HathiTrust digital library may
indeed be an “‘invaluable contribution to the progress of science and cultivation of
the arts,’” id. (quoting the District Court, Authors Guild, Inc. v. HathiTrust, 902 F.
Supp. 2d 445,464 (S.D.N.Y. 2012)), but that did not make all of its uses
transformative, HathiTrust, slip op. at 17. However, the existence of social benefits
has supported fair use defenses in numerous cases in this Circuit and elsewhere.
See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir.
2006) (fair use analysis requires a balancing of “‘the benefit the public will derive
if the use is permitted and the personal gain the copyright owner will receive if the
30

use is denied.’”) (quoting MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir.1981)
(balancing interests when considering the purpose and character of the use)); Sega
Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir. 1992) (“[W]e are
free to consider the public benefit resulting from a particular use notwithstanding
the fact that the alleged infringer may gain commercially. Public benefit need not
be direct or tangible, but may arise because the challenged use serves a public
interest.”) (citations omitted).
Amicus heartily agrees with the District Court’s assessment of the social
benefits of Book Search. First, Book Search “provides a new and efficient way for
readers and researchers to find books” and has become “an essential research tool.”
Google, 954 F.Supp.2d at 288. This benefit is especially meaningful to Authors
Alliance because Book Search makes it possible for more readers to find our
members’ and other authors’ books.
Second, Book Search “greatly promotes a type of research referred to as
‘data mining’ or ‘text mining,’ . . . [which] ‘can provide insights about fields as
diverse as lexicography, the evolution of grammar, collective memory, the
adoption of technology, and the pursuit of fame, censorship, and historical
epidemiology.’” 6 Id. (citations omitted). Data-mining—i.e., computer-aided
processing and analysis of information within texts—allows authors to write new

6

See Brief of Amici Curiae of Digital Humanities Scholars filed in this appeal.
31

works based on insights that data-mining makes possible. See, e.g., MATTHEW
JOCKERS, MACROANALYSIS: DIGITAL METHODS AND LITERARY HISTORY (Univ.
Illinois Press, 2013). This too benefits Amicus, as some Authors Alliance members
already engage in this type of research and others will data-mine in the future.
Third, Book Search “expands access to books” so that “traditionally
underserved populations will benefit as they gain knowledge of and access to far
more books.” Google, 954 F. Supp.2d at 288. Book Search has a democratizing
impact on research, making it possible for authors to reach audiences who would
otherwise be unable to find information in research library books, including those
whose efforts are hampered by disability, distance, and means. But people with
limited economic resources or other disadvantages may have Internet access
through libraries, schools, or otherwise. They can now discover these works. As
University of Michigan President Coleman observed:
Throughout history, most of the world’s printed knowledge has been
created, preserved and used only by society’s elites—those for whom
education and power meant access to the great research libraries. Now
groundbreaking tools for mass digitization are poised to change that
paradigm. We believe the result can be a widening of human
conversation comparable to the emergence of mass literacy itself.
Mary Sue Coleman, Riches We Must Share, WASH. POST, Oct. 22, 2005. For
authors who write to be read, this means a wider audience for our works, serving
our goals of contributing to and spreading knowledge.

32

Fourth, Book Search “helps to preserve books and give them new life.”
Google, 954 F. Supp.2d at 288. Preservation of the intellectual and cultural
heritage embodied in books and other works of authorship is a very important
social benefit. See, e.g., BLUE RIBBON COMM’N ON SUSTAINABLE DIGITAL
PRESERVATION AND ACCESS, FINAL REPORT: SUSTAINABLE ECONOMICS FOR A
DIGITAL PLANET: ENSURING LONG TERM ACCESS TO DIGITAL INFORMATION (Feb.
2010). Amicus considers preservation to be especially important because most
authors of books in the Book Search database want to leave an intellectual legacy
that will enable future generations to have access to their works. Without
preservation efforts like Google’s, many works of which there are few surviving
copies might be destroyed or lost long before they enter the public domain. See R.
Anthony Reese, What Copyright Owes to the Future, 50 HOUSTON L. REV. 287,
289-91 (2012) (emphasizing preservation of intellectual legacies as a social
benefit).
Fifth, “by helping readers and researchers identify books, Google Books
benefits authors and publishers” because it provides links to sites where books can
be purchased or obtained from libraries and book retailers, making it reasonable to
conclude that “Google Books will generate new audiences and create new sources
of income.” Google, 954 F.Supp.2d at 288. Amicus regards this ability to reach

33

new audiences to be a substantial benefit to Authors Alliance members, to most
other authors, and to publishers. 7
The “significant public benefits” of Book Search are not undercut by
Google’s for-profit status or its commercial interest in drawing users to its search
engine. Indeed, the social benefits the District Court identified cannot be fully
achieved unless millions of users are attracted to Google’s search engine to find
information.
The social benefit of a search engine’s improvement in public access to
information was recognized in the Ninth Circuit’s fair use assessment in Kelly. The
court noted that Arriba’s thumbnails of Kelly’s images “benefit the public by
enhancing information-gathering techniques on the Internet.” Kelly, 336 F.3d at
820. The Ninth Circuit reiterated this point in Perfect10, saying that Google’s
“search engine provides a social benefit by incorporating an original work into a
new work, namely, an electronic reference tool.” Perfect10, 508 F.3d at 1165. See
also Field v. Google Inc., 412 F. Supp.2d 1106, 1119 (D. Nev. 2006) (cache copies
of copyrighted content said to serve “socially important purposes”). The Second
Circuit has cited approvingly to the fair use rulings in Kelly and Perfect10.
HathiTrust, Slip. Op. at 15, 19-20. Social benefit thus has been and should be
7

Insofar as Book Search enables Google to improve its search technologies and
develop or refine other tools such as automated translation software, the District
Court might also have noted this as a social benefit given that these improvements
and refinements will benefit millions of users.
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considered in making fair use determinations, especially when the uses are
transformative.
Improving public access to information will not always be fair use, of
course. Grokster and Napster are among the firms found to be infringers who have
increased public access to copyrighted works. MGM Studios, Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005) (peer-to-peer file-sharing firm held to have induced millions
of infringements); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.
2001) (peer-to-peer file-sharing firm held contributorily and vicariously liable for
millions of its users’ infringements). The enhanced access in those cases, however,
was found to have caused discernible harm to markets for the copyrighted works at
issue. Courts held that the infringements these defendants induced or contributed to
supplanted demand for legitimate purchases of the creative works and harmed
copyright markets. Where, as in this case and in other recent search engine cases, a
use enhances public access to information “without adversely impacting the rights
of copyright holders,” Google, 954 F. Supp.2d at 293, improving public access
confers a social benefit that weighs in favor of fair use.
Book Search promotes the progress of science, the very goal that fair use is
intended to foster. In this transformative use case, this consideration is especially
potent. As Judge Leval has observed, when “the secondary use adds value to the
original—if the quoted matter is used as raw material, transformed in the creation

35

of new information, new aesthetics, new insights and understandings—this is the
very type of activity that the fair use doctrine intends to protect for the enrichment
of society.” Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV.
1105, 1111 (1990). Authors Alliance urges the Second Circuit to keep this key goal
in mind as the court reviews the fair use ruling in this case.
Conclusion
The vast majority of the millions of scholarly books in research libraries
from which Book Search originated are at risk. Without Book Search these works
are effectively unusable for new generations of online users and the millions of
people without access to a research library, creating the risk that they will languish
forgotten in library stacks. Most authors fear this fate more than they fear the
speculative harms imagined by the Authors Guild.
Book Search uses, including snippet view, fall squarely within this Court’s
fair use precedents. Book Search is transformative, in line with HathiTrust and
transformative use cases from other Circuits, it aligns with most reasonable
authors’ expectations about use of their works, and it provides broad social benefits
that must be considered in the overall fair use analysis. Therefore, we respectfully
urge this Court to affirm the District Court’s fair use ruling.

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DATED: July 10, 2014

Respectfully Submitted,
/s/ Jennifer M. Urban
Jennifer M. Urban
Samuelson Law, Technology & Public
Policy Clinic
University of California, Berkeley, School
of Law
Counsel for Amicus

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) and 29(d) because this brief contains 6,858 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has
been prepared in a proportionally spaced typeface using Microsoft Word in Times
New Roman, 14 point font.
/s/ Jennifer M. Urban

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