The Authors Guild v. Google, Inc.

Filing 6

FORM C, on behalf of Appellant Jim Bouton, Joseph Goulden, Betty Miles and The Authors Guild, FILED. Service date 01/06/2014 by CM/ECF.[1126648] [13-4829]

EXHIBIT 3

Case 1:05-cv-08136-DC Document 1088

Filed 11/14/13 Page 1 of 30

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
THE AUTHORS GUILD, INC., and
BETTY MILES, JOSEPH GOULDEN,
and JIM BOUTON, on behalf of
themselves and all others
similarly situated,

against

-

OPINION

Plaintiffs,
-

USUC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED: tLfr//i3

05 Civ.

8136

(DC)

-

GOOGLE INC.,
Defendant.

x
APPEARANCES:

(See last page)

CHIN, Circuit Judge
Since 2004,

when it announced agreements with several

major research libraries to digitally copy books in their
collections,

defendant Google Inc.

than twenty million books.
participating libraries,

(“Google”)

has scanned more

It has delivered digital copies to

created an electronic database of books,

and made text available for online searching through the use of
usnippetsH

Many of the books scanned by Google,

under copyright,

however,

were

and Google did not obtain permission from the

copyright holders for these usages of their copyrighted works.

As a consequence,

in 2005, plaintiffs brought this class action

charging Google with copyright infringement.

Case 1:05-cv-08136-DC Document 1088

Filed 11/14/13 Page 2 of 30

Before the Court are the parties

for

cross-motions

summary judgment with respect to Gocgle s defense of fair use
under § 1C7 of the Copyright Act,
reasons

set forth below,

granted and plaintiffs
denied

Accordingly,

17 U S C

§ 1C7

For the

Google s motion for summary judgment is
motion for partial summary judgment is

judgment will be entered in favor of Gcogle

dismissing the case
BACKGROUND
A

The Facts
For purposes

dispute

See 9/23/13 Tr

They are summarized as
1

o.t this motion,
iC—li,

15,

the facts are not
25—2E

Dcc

No

in

lCE

follows

The Parties
Plaintiff Jim Bouton,

York Yankees,

is

the former pitcher for the New

the legal or beneficial owner of the U S

copyright in the book Bail Four

Plaintiff Betty Miles is the

legal or beneficial owner of the U S
Trouble with Thirteen

copyright in the book The

Plaintiff Joseph Gculden is the legal or

beneficial owner of the U S

ccpyright in the hook The

1

When pressed at oral argument to identify any factual
issues that would preclude the award of summary judgment,
plaintiffs
counsel was unable to do so
Id
at 25-2€
—2—

Case 1:05-cv-08136-DC Document 1088

Superlawyers

Filed 11/14/13 Page 3 of 30

The Small and Powerful World of the Great

Washington Law Firms

Google Resp

9191 l-3

2

All three books

have been scanned by Goog]e and are ava.i.i able for search on
Google s website,
91 ‘i

without plaintiffs

Plaintiff The Authors Guild,

permission
Inc

,

Google Resp

is the nation s

largest

organization of published authors and it advocates for and
supports the copyright and contractual
writers

Google Resp

interests of published

9191 ?-

Google owns and operates the largest Internet search
engine in the world
people use Google s

Google Resp

91

Each day,

search engine free of charge;

millions of

commercial and

other entities pay to display ads on Gooqle s websites and on
other websites that contain Gocgle ads

Google Resp

91

Ic:

Google is a for-profit entity,

and for the year ended December

31,

5 billion in advertising revenues

2C11,

it reported over

Google Resp

91 11

“Google Resp l refers to Google s Responses and
Objections to plaintiffs
Statement of Undisputed Facts in
Support of Their Motion for Partial Summary Judgment
Dcc
No
‘P1
Resp “ refers to plaintiffs
ici:
Response to Google s
Local Rule 5 1 Statement
Doc
No
IC71
I have relied on the
parties
responses to the statements of undisputed facts only to
the extent that factual statements were not controverted

Case 1 :05-cv-081 36-DC

Document 1088

Filed 11/14/13 Page 4 of 30

The_Google Books_Prgjct

2.

In 2CC4,
The first,

Gcogle announced two digital bocks programs

initially called “Gcogle Print” and later renamed the

“Partner Program,

involved the ‘hosting” and display of material

‘

provided by book publishers or other rights holders
Resp

1,

{J

Prcect,

1

The second became known as the “Library

14

and over time it involved the digital

scanning of books

in the collections of the New York Public Library,
Congress,
5

Doc

No

Google

and a number of university libraries
iC35

Google Resp

91I 25,

2€,

2;

the Library of
Clancy Deci

El

Resp

1

¶ I’J

The Partner Program and the Library Project together
comprise the Gocgle Books program
Resp

15

novels,

biographies,

“Coogle Books”:

All types of books are encompassed,
children s books,

textbcoks,

instruction manuals,

cookbooks,

poetry books,

and memoirs

Dccl

Doc

:

¶ I

No

lCIl

Gcogle
including

reference works,

treatises,
El

dictionaries,
Resp

iI

E;

Jaskiewic2

Some S% of the hocks are

non-fiction while approximately % are fiction

Both in—print

These estimates are based on studies of the contents of
the libraries involved
Def
Mem
at ?
No
Doc
citing
1C32:
Brian Lavoie and Lorcan Dempsey, Beyond l2
Characteristics of
Potentially In—Copyright Print Books in Library Collections, 15D-Lib 11/12
2CCS , available at http //www dub org/dlib/
novemberC9/lavoie/Ulavoie html
last visited Ncvember 12,

—‘1—

Casel:05-cv-08136-DC DocumentlO88

FIIedll!14113 Page5of3O

and out-of-print books are included although the great maority
1
are out-of-print

Jaskiewicz Dccl

1 L

In the Partner Program works are displayed with
1
permission of the rights holders

Google Resp

I l€

The

Partner Program is aimed at helping publishers sell books and
helping bocks become discovered

Google Reap

I 18

Initially, Google shared revenues from ads with publishers or
other rights holders in certain circumstances

In 2Cll, however,

Google stopped displaying ads in connection with all books
Google Resp

II 17, 21; Dougall Deci.

11 5-8

Doc

No

1C7€

Partners provide Google with a printed copy of their books fcr
scanning, or a digital copy if one already exists

is:

Partners decide how much of their books

sample pages to the entire book
I 2C

--

are browsable

--

Google Resp
from a few
Google Resp

As of early 2C12, the Partner Program included

approximately 2 5 million books, with the consent of some 45, CCC
rights holders

Google Resp

I 24:

As for the Library Project, Google has scanned more
than twenty million books, in their entirety, using newlydeveloped scanning technology

2Cl3::
26:

Google Resp

The numbers are not disputed
—c
t’

‘II 28, 29

See S/23/2C13 Tr

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Case 1:05-cv-08136-DC Document 1088

Filed 11/14/13 Page 7 of 30

its making available to libraries for downloading ci digital
copies ci in-copyright books scanned from their collections
Google Resp
3.

91 55

Google Books
In scanning books

in-copyright books,

for its Library Project,

Google uses optical character recognition

technclcgy to generate machine-readable text
copy of each bock
Jaskiewicz Led

including

Google Resp

91 3

91 E2;

P1

compiling a digital

Resp

91

I8

Google analyzes each scan and creates an

overall index of all scanned books

The index links each word or

phrase appearing in each book with all of the locations in all of
the books

in which that wcrd or phrase is

found

The index

allows a search for a particular word or phrase to return a
result that includes the most relevant bcoks in which the word or
phrase is

found

Clancy IDeci

¶1 E;

P1

Resp

Because the full texts of books are digitized
the full text of all the books
Clancy Dccl

91 7;

Google Resp

Users of Google s

the search term appears

a user can search

in the Gocgle Books corpus
91 12

search engine may conduct searches

using queries of••• their own design
response to inquiries,

9191 22-2E

P1

Resp

J

1C

In

Google returns a list of books in which
Clancy Dccl

91 E

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Case 1:05cv-O8136-DC

Document 1088

returned, in response to a query
j

‘blacklisted,

‘

Filed 11/14113 Page 9 of 30

one of the snippets on each page

meaning it will not be shown;

cut of ten entire pages in each book black-i
Resp

¶91 45—5C

P1

Resp

¶91 35,

and at least one
sted

000g].e

An ‘ who tries
attacker”
1

33—4C

to obtain an entire book by using a physical copy of the bock to
string together words appearing in successive passages would. be
able to obtain at best a patchwork of snippets that would be
missing at least one snippet from every page and IC% of all
pages

P1

in short

chunks,

haiku

Resp

91 42
‘

In addition,

such as dictionaries,

are excluded from snippet view
4.

works with text organi2ed
cookbooks,
P1

Resp

and books of
91 42;

The Benefits of the Library Project
and Google Books
The benefits of the Library Prcect are many

1
First

Google Books provides a new and efficient way for readers and
researchers to find books

See,

e g

,

Clancy Dccl

Ex

G

It

makes tens of millions of books searchable by words and phrases
It provides a searchable index linking each word in any book to
all books in which that word appears

Clancy Dccl

91

Google Books has become an essential research tool,

as

..LJbrarians identify and find research sources,
process of interlibrary lending more efficient,

it helps

it makes the
and it

Case 1:05cv-08136-DC Document 1088

facilitates

Filed 11/14/13 Page 10

finding and checking citations

American Library Ass n et al

at 4-7

Doc

Br
No

ot3O

cf Amid

1C4

Curiae

Indeed,

Google Books has become such an important tool for researchers
and librarians that it has been integrated into the educational
system

--

it is taught as part of the information literacy

curriculum to students at all levels
Second
tool,

Id

at 7

in addition to being an important reference

Google Books greatly promotes a type of research referred

to as ‘data mining” or “text mining

“

Br

and Law Scholars as Amici Curiae at 1

Dcc

of Digital Humanities
No

1G52

Google

Books permits humanities scholars to analy2e massive amounts of
data

--

the literary record created by a collection cf tens of

millicns of books

Researchers can examine word frequencies,

syntactic patterns,

and thematic markers to consider how literary

style has changed over time
Using Google Books,

Id

for example,

at 5-9;

Ciancy Decl

researchers can track the

frequency of references to the United States as
“the United States
in the plural

is’

Id

a single entity

versus references to the United States

“the United States are’

changed over time

¶ 15

at 7

and how that usage has

The ability to determine how

often different words or phrases appear in books at different
times

‘can provide insights about fields as diverse as

-Ic-

Case i:05-cv438136-DC Document 1088

lexicography,

Filed 11/14/13 Page 11 of 30

the evolution of grammar,

collective memory,

adoption of technology,

the pursuit of fame,

historical epidemiology

“

censorship,

the

and

Jean-Baptiste Michel et al

Quantitative Analysis of Culture Using Millions of Digitized
Books,

3l Science 17€,
Third,

particular,

17€

2Cl1

Clancy DecJ,

Ex

H:

Google Books expands access to bocks

In

traditionally underserved populations will benefit as

they gain knowledge cf and access to far more books

Gcogle

Books provides print-disabled individuals with the potential to
search for books and read them in a format that is compatible
with text enlargement software,

text-to-speech screen access

software,

Digiti2aticn facilitates the

and Braille devices

conversion of books to audio and tactile formats,
access for individuals with disabilities
Maurer,

President of the National

Michael McMahon,

increasing

Letter from Marc

Federation for the Blind,

Office of the Clerk

Jan

l,

2C1C

Dcc

Lo J
Nc

Gocgle Books facilitates the identification and access of
materials

for remote and underfunded libraries that need to make

efficient decisions as
own collections or

to which resources to procure for their

Lhrough inLerlibrary loans

Curiae American Library As

n at -E:

-11-

Br

of Amid

Case 1:05-cv-08136-DC Document 1088

Fourth,
them new life

Filed 11/14/13 Page 12 ot3O

Gocgle Books helps to preserve books and give

Older books,

many of which are out—of-print books

that are falling apart burled in library stacks,
scanned and saved
Supp

2d €EE,

available,

€‘7C

See Authors Guild v
S C N Y

2C11

at least for search,

are being

Google Inc

,

These books will

7C F
now be

and potential readers will be

alerted to their existence
Finally,
books,

by helping readers and researchers

Google Books benefits authors and publishers

identify
When a user

clicks on a search result and is directed to an ‘About the Book’
page,

the page will offer links to sellers of the book and/or

libraries
Dccl

listing the book as part of their collections
The About the Book page for Ball

provides links

to Amazon corn,

and IndieBcund

See Def

Four,

Barnes&Nohle corn,

Mem

at 9

Clancy

for example,

Books—A—Million,

A user could simply click

on any of these links to be directed to a website where she could
purchase the book

Hence,

Google Books will generate new

audiences and create new sources of income
As amici observe

‘Thanks to

Google Books

librarians can identify and ef ficiently sift through possible
research sources,

amateur historians have access to a wealth of

previously obscure material,

and everyday readers and researchers

—1.2—

Case 1:05-cv-08136-DC Document 1088

Filed 11J14113 Page 13

ot30

can find books that were once buried in research library
archives
B.

Br

‘

of Amici Curiae American Library Ass n at 3

PLoceduralHisj
Flaintiffs commenced this action on September 2C,

alleging,

inter alia,

2CC5,

that Google committed copyright

infringement by scanning copyrighted books and making them
available for search without permission of the copyright holders
From the outset,

Google s principal defense was

1C7 of the Copyright Act,

17 U S C

§ 1C7

After extensive negotiations,

the parties entered into

a proposed settlement resolving plaintiffs
wide basis

On March 22,

2C1].,

I

fair use under §

claims on a class-

issued an opinion rejecting the

proposed settlement cn the grounds that it was not fair,
adequate,
Supp

and reasonable

2d EE

S C N Y

Thereafter,
discussions,

Authors Guild v

Gcogle Inc

77C F

2C11
the parties engaged in further settlement

but they were unable to reach agreement

The

parties proposed and I accepted a schedule that called for the
filing of plaintiffs
of discovery,

class certification motion,

the completion

and then the filing of summary udgmenL motions

See 9/1E/li Order

Dcc

No

92

amended class action complaint

Plaintiffs
the “Complaint”:

—13—

filed a fourth
on October 14,

Case 1:05-cv-08136-DC Document 1088

2C11

Dcc

No

985

Filed 11114/13 Page 14 o130

While the date! in the schedule were

subsequently extended, the sequence of events was retained, with
the class certification motion to precede the summary judgment
motions, and adding dates for Google s filing of a motion to
dismiss the Authors Guild s claims
Dcc

No

99€

3/26/12 Order

Dcc

1
See e a
No

,

1/17/12 Order

1CC7

Plaintiffs filed their class certification motion and
Google filed its motion to dismiss the Authors Guild s claims
On May 31, 2C12,

1 issued an opinion denying Google s motion to

dismiss and granting the individual plaintiffs
certification
S D N Y

Authors Guild v

Goople Inc

,

motion for class
282 F R D

2C12:
On June 9, 2C12,

I issued an order re-setting the

briefing schedule for the summary judgment motions
Order

384

Doc

No

1C28

€/15/12

The parties thereafter filed the instant

cross-motions for summary judgment

Before the motions were

fully submitted however, the Second Circuit issued an order on
1
September 17, 2C12, staying these proceedings pending an
interlocutory appeal by Google from my decision granting class
certification

5/17/12 Order

Dcc

No

1C€3

On July 1, 2C13, without deciding the merits of the
appeal, the Second Circuit vacated my class certification
—14—

Case 1:05-cv-08136-DC Document 1088

decision,

Filed 11/14/13 Page 15 cr30

concluding that “resciution of Google s fair use

defense in the first instance will necessarily infcrm and perhaps
moot cur analysis of many class certification
Guild,

Inc

v

Google Inc

721 F 3d 132,

,

134

issues
2d Cir

Authors
2C13

The Second Circuit remanded the case ‘for consideration of the
fair use issues

Id

On remand,

at 135
the parties completed the briefing of the

summary judgment motions
2C13

I

I heard cral argument on September 23,

ncw rule on the motions
U IS CUSS I ON
For purposes of these motions,

I assume that plaintiffs

have established a prima facie case of copyright infringement
against Gocgle under 13 U S C

§ iCE

Rural Tel

34C,

Serv

Co

,

49 U S

See Feist Publ ns,
3E1

icci

books,

its servers and backup tapes

v

Gcogle has

digitally reproduced milLions ct copyrighted books,
individual plaintiffs

Inc

including the

maintaining copies fcr itself cn
See 17 U S C

prohibiting unauthorized reproduction:

§ ICE

i

Google has made digital

copies available for its Library Prcect partners to download
See 17 U S C

§ iCE

3

prohibiting unauthorized distribution:

Google has displayed snippets
17 U S C

§ ICE

5

from the books to the public

prohibiting unauthorized display:
—i

—

See

Gooqie

Case 1:05-cv-08136DC Document 1088

has done all of this,
Library Prcect,
owners

with respect to in-copyright books in the

without license or permission from the copyright

The sole issue now before the Court is whether Googie s

use of the copyrighted works is
laws

For the reasons set

A.

Filed 11/14/13 Page 16 ot30

Ap

..P.J

‘fair user

forth below,

under the copyright

I conclude that it is

w

Fair use is a defense to a claim of copyright
infringement

The doctrine permits the fair use of copyrighted

works t fulfill copyright s very purpose,
to
Progress of Science and useful Arts
Music
I,

Inc

§

Cir

,

ci

SiC U S

,

5

2C]3:

5E9,

575

I94

accord Cariou v

‘

t. o promote the

cpbell v

Acuff-Rose

quoting U S

Prince,

714

Const

Art

7C%

F 3d E4,

,

2d

Copyright law seeks to achieve that purpose by

providing sufficient protection to authors and inventors to
stimulate creative activity,

while at the same time permitting

others to utili2e protected works to advance the progress of the
arts and sciences
2CC3:

Blanch v

Pierre N
llC5,

Leval,

1IC7—C

See Eldred v
Koons,

1JE7

Ashcroft,

F 3d 24,

2%C

Toward a Fair Use Standard,

ic:

537 U S
2d Cir

lS,

2CCE

1C3 Harv

As the Supreme CourL has held,

infancy of copyright protection,

L
‘

212
Hcn

;

Rev
f rom the

some opportunity for fair use of

copyrighted materials has been thought necessary to

-1 E

fulfill

Case 1:05-cv-08136-DC

Document 1088

copyright s very purpose

‘

Harper & Row Publishers,

Inc

SEC

19E5:

Campbell,
v

Filed 11/14/13 Page 17 of 30

SiC U S

Nation Enters

at 575;

see also

‘171 U S

,

539,

recognizing ‘the latitude for scholarship and comment

traditionally afforded by fair use’
The
Copyright Act
1

fair use doctrine is codified in § 1C7 of the
which provides

in relevant part as

follows

The fair use of a copyrighted work,
for purposes such as criticism, comment, news
reporting, teaching
including multiple
copic s for classroom use;
scholarship, or
research, is not an infringement of
copyright
In determining whether the use
made cf a work in any particular case is a
fair use the factors to be considered shall
include
--

1
the purpose and character of
the used including whether such use
is of a commercial nature or is for
nonprcfit 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
17 U S C

§ 1C7
The determination of fair use is

context-sensitive inquiry,” Blanch v
-17-

“an open-ended and

Koons,

‘1E7

F 3d at 251,

and

Case 1:05-cv-08136-DC Document 1088

thus the fair use doctrine calls
Campbell,
553

510

U S

at 577;

Filed 11/14/13 Page 18 of 30

for ‘case-by-case analysis,”

see also Harper & Row,

471 U S

The four factors enumerated in the statute are

non-exclusive and provide only “general guidance”,
explored and weighed together,
copyright

“

at EEC-El

Campbell,
As

U S

“in light of the purposes of

510 U S

at 57-7S;

Harper &

Row,

471 U S

the prcpcnent carries the burden of proof

as to all issues in dispute
,

they are to be

fair use is an affirmative defense to a claim of

copyright infringement,

Inc

at

EC F 3d 913,

91

Am

2d Cir

Geophysical Union v
1994

;

Texaco

see also Campbell,

510

at 590
A key consideration is whether,

into the first factor,
“transformative,
“supersedes”

“

as part of the inquiry

the use of the copyrighted work is

that is,

whether the new work merely

or “supplants”

the original creation,

or whether it

instead adds something new, with a further
purpose or different character, altering the
first with new expression, meaning, or
message) it asks, in other words, whether and
to what extent the new work is
“transformative
Campbell,

SiC U S

Standard,

iC3 Nary

v

at S79
L

quoting Leval,

Rev

Boning Kindersley Ltd

at l211
,

445

;

accord Bill Graham Archives

F 3d 505,

-15-

‘loward a Fair Use

505

2d Cir

2CC5

Case 1:05-cv-08136-DC Document 1088

Filed 11/14/13 Page 19 of 30

‘Most important to the court s analysis of the first factor is
transformative
F 3d at S23
necessary”

nature of the work

Geophysical Union,

Although transformative use is not ‘absolutely
to a finding of fair use,

promote science and the arts,

“the goal of copyright,

to

is generally furthered by the

creation of transformative works
B.

Am

“

Campbell,

‘

51C U

at ?S

Application
I discuss each of the four factors separately
1

and I

then weigh them together
1.

fppse and Character of Use
The first factor is

use,

“the purpose and character of the

including whether such use is of a commercial nature or is

for ncriprofit educational purposes

“

l U S C

§ lC

1

Google s use of the copyrighted works is highly
transformative

Google Books digiti2es books and Lransforms

expressive text into a comprehensive word index that helps
readers,

scholars,

1
researchers

and others

find backs

Gcogle

Books has become an important tool for libraries and librarians
and cite-checkers as it helps to identify and find books

The

use of book text to facilitate search through the display of
snippets is transformative
Inc

,

5C

F 3d illE,

lifE

See Perfect 1C,
th Cir
—i

—

2CC7

inc

v

Amazon corn,

holding that use of

EC

Case 1 :05-cv-081 36-DC

works

‘thumbnail images,

--

photographs
v

Document 1088

--

‘

including copyrighted

to facilitate search was

Arriba Soft. Corp

,

33€

also Bill Graham Archives,

E 3d 8H
44€

display of images of posters

readers

“transformative”

9th Cir

F 3d at €C9-ll

in 4€C-page

Grateful Dead was transformative,
small size

Filed 11/14/13 Page 20 of 30

2cC3:

sarne ;

see

holding that

cultural history of the

explaining that

of the images of the posters

Kelly

;

“

while the

is sufficient tc permit

to recognize the historial significance of the posters,

it is inadequate to offer more than a glimpse of their expressive
value”:

The display of snippets of text for search is similar

to the display of thumbnail images cf photographs for search or
small images of concert posters
the snippets help users
may be of interest
purpose

—-

for reference to past events,

as

locate books and determine whether they

Google Bocks thus uses wcrds

for a different

it uses snippets of text to act as pointers directing

users to a broad selection of books
Similarly,

Google Books is also transformative in the

sense that it has transformed book text into data for purposes of
substantive research,
new areas,

including data mining and text mining in

thereby opening up new fields of research

Words in

books are being used in a way they have not been used before
Google Books has created something new in the use of book

-2C-

Case 1:05-cv-08136-DC Document 1088

text

Filed 11/14/13 Page 21 of 30

the frequency of words and trends

--

in their usage provide

substantive information
Google Books does not supersede or supplant books
because it is not a tool to be used to read books

Instead,

it

“adds value to the original’

and allows

information,

new insights and understandings

new aesthetics,

Level,

Toward a Fair Use Standard,

Hence,

the use is

1C3 Harv

L

of course,

at 1111

as plaintiffs argue,

is a for-profit entity and Google Books

is

against a finding of fair use
SiC U S

Harper & Row,

‘

at 5E5

that Google

largely a commercial

The fact that a use is commercial

accord Campbell,

Rev

transformative

It is true,

enterprise

for ‘the creation of new

tends to weigh
‘171

U S

On the other hand,

at 5€2;
fair use

has been found even where a defendant benefitted oamrnercially
from the unlicensed use of copyrighted works
4E7

F 3d at 253;

Bill Graham Archives,

See,

e g

445 F 3d at 512

,

Blanch,
See also

Castle Rock Entm tInc

v

132,

observing that Second Circuit does

142

2d Cir

l995

Carol Pubi q Grp

,

Inc

,

15C F 3d
“not

give much weight to the fact that the secondary use was for
commercial gain”

Here,

000gle does not sell

made of books for Google Books;
that it displays;

Lhe scans

it has

it does not sell the snippets

and it does not run ads on the About the Book
-21-

Case 1:05-cv-08136-DC

Document 1088

pages that contain snippets

It does not engage in the direct

commerciali2aticn of copyrighted works
Gocg.le does,

of course,

Filed 11/14/13 Page 22 of 30

See 17 U S C

§ 1C

i

benefit commercially in the sense that

users are drawn to the Google websites by the ability to search
Google Books

While this is a consideration to be acknowledged

in weighing all the factors,
motivation is profit,
several

even assuming Gocgle s principal

the fact is that Gcogle Bcoks serves

important educaticnal purposes
Accordingly,

I conclude that the first factor strongly

favors a finding of fair use
2.

Nature oLgQyiitorks
The second factor is

work

“

] U S C

§ lC 2:

types of published books,
out—of-print

“the nature of the copyrighted

Here,

the works are books

fiction and non-fiction,

-—

all

in—print and

While works of fiction are entitled to greater

copyright protection,

Stewart v

Abend,

45 U S

2C7,

237

199C;

here the vast majority of the books in Gcogle Books are
non-fiction

Further,

the books at issue are published and

The parties agree that the second factor plays little
role in the ultimate fair use determination
P1
Mem
at 3E
n 18
Doc
No
Mem
at 25:
; Def
See On Davis v
Gap,
Inc
24€ F 3d 152, 175
2d Cir
2CC1
“The second statutory
factor, the nature of the copyrighted work, is rarely found to be
determinative
internal citation omitted
icsc:

“

—22—

Case 1:05-cv-08136-DC Document 1088

Filed 11/14/13 Page 23 of 30

available to the public

These considerations

fair use

,

See Arica Inst

2d Cir

i92

Inc

v

Palmer,

favcr a finding of

7C F 2d 1C€7,

1C7

‘Whether or not a work is published is critical

to its nature under factor two because the scope of fair use is
narrower with respect to unpublished works
Publ ns
Cir

Intern

i9C
3.

ApS v

Carol Publ’q Grp

quoting New Era
C4

,

F 2d 152,

157

2d

internal quotation marks cminitted
Amount and Substantiality of Portion Used
The third factor is

‘the amount and substantiality of

the pcrtion used in relation to the copyrighted work as a whole.”
17 U S C

§ 1C7

entire books
hand,

--

Google scans the full text of books

3:

and it copies verbatim expression

the

--

On the other

courts have held that copying the entirety of a work may

still be fair use

See,

City Studios,

Inc

Archives,

F 3d at

44E

,

e g

‘14 U S
El3

Sony Corp
417,

4—5C

of Am
]‘i

v
;

Universal

Bill Graham

‘copying the entirety of a work is

sometimes necessary to make a fair use of the image
one of the keys to Google Books is
search of books,

Here,

its offering of full-text

full—work reproduction is critical to the

functioning of Google Books

Significantly,

Google limits

amount of text it displays in response tc a search

—23—

the

as

Case 1:05-cv-08136-DC Document 1088

On balance
1

FIled 11/14113 Page 24 0130

I conclude that the third factor weighs

slightly against a finding of fair use
4.

Effect of Use Unon Potential Market or Value
The fourth factor is “the effect of the use upon the

potential market for or value of the copyrighted work
u

s

c

s

107 4:

17

Here, plaintiffs argue that Google Books will

negatively impact the market for books and that Gocgle s scans
will serve as a “market replacement” for books
41:

El

Mem

at

It also argues that users could put in multiple searches,

varying slightly the search terms, to access an entire book
9/23/13 Tr

at

e:

Neither suggestion makes sense

Gocgle does not sell

its scans, and the scans do not replace the books

While partner

libraries have the ability to download a scan of a book from
their collections, they owned the books already
the original book to Google to scan

-e

they provided

Nor is it likely that

someone would take the time and energy to input countless
searches to try and get enough snippets to comprise an entire
book

Not only is that not possible as certain pages and

snippets are blacklisted, the individual would have to have a
copy of the book in his possession already to be able to piece
the different snippets together in coherent fashion
—24—

Case 1:05-cv-08136-DC Document 1088

To the contrary

Filed 11/14/13 Page 25 of 30

a reasonable factfinder cculd only

find that Google Books

enhances

of copyright holders

An important factor in the success of an

the sales of books to the benefit

individual title is whether it is discovered
readers

learn of its existence

Harris Dccl

whether potential

--

9!

Gcogle Books provides a way for authors
1
noticed

much like traditional

¶9! l4-l

Indeed,

Doc

No

works to become

in-store bock displays

Id

at

both librarians and their patrons use Gocgle

Books to identify books to purchase
American Library Ass n at

Br

of Ainici Curiae

Many authors have noted that

cnline browsing in general and Google Books in particular helps
readers
Further,

find their work,

thus increasing their audiences

Google provides convenient links to booksellers to make

it easy for a reader to order a book
on-line shopping,

In this day and age of

there can be no doubt but that Google Books

improves books sales
Hence,

I

conclude that the fourth factor weighs

strongly in favor of a finding of fair use
5.

Overall Assessment
Finally,

the various non-exclusive statutory factors

are to be weighed together,
considerations,

along with any other relevant

in light of the purposes of

the copyriqht laws

Case 1:05-cv-08136-DC Document 1088

In my view,
benefits

Filed 11/14/13 Page 26 ot3O

Google Books provides significant public

It advances the progress of the arts and sciences,

while maintaining respectful ccnsideraticn for the rights of
authors arid other creative individuals,

and without adversely

impacting the rights of copyright holders

It has become an

invaluable research tool that permits students,
librarians,
books

and others

teachers,

to more efficiently identify and lccate

it has given scholars the ability,

for the first time,

conduct fulltext searches of tens ci millions of books
preserves books,

It

in particular out-cf-print and old books that

have been forgotten in the bowels of libraries,
new life

to

and it gives them

It facilitates access to books for print-disabled arid

remote cr underserved populations

It generates new audiences

and creates new sources of income for authors and publishers
Indeed,

all society benefits
Similarly,

respect to plaintiffs

Google is entitled to summary judgment with
claims based on the copies ci scanned

books made available to libraries

Even assuming plaintiffs have

demonstrated a prima facie case of copyright infringement,
Gocgle s actions constitute fair use here as well

Google

provides the libraries with the technological means to make
digital copies of books that they already own

-2-

The purpose ci

Case 1:05-cv-08136-DC Document 1088

Fi’ed 11/14/13 Page 27 of 30

the library copies is to advance the libraries

lawful uses of

the digiti2ed books consistent with the copyright law
libraries then use these digital copies

The

in transformative ways

They create their own full-text searchable indices of bcoks
maintain copies for purposes of preservation,

and make copies

available to

expanding access

print-disabled individuals,

for them in unprecedented ways

Gocgle s actions in providing

the libraries with the ability to engage in activities that
advance the arts and sciences constitute fair use
To the extent plaintiffs are asserting a theory of
secondary liability against Google,
libraries
Indeed,

actions are protected by the fair use dcctrine

in the HathiTrust case,

libraries

conduct was

HathiTrust,
cannot

the theory fails because the

SC2 F

Supp

Judge Baer held that the

fair use
2d 445,

See Authors Guild,
4EC-El,

‘1E4

v

2C12

‘1

imagine a definition of fair use that would not encompass

the transformative uses made by Defendants
Proect

S D N Y

Inc

and would require that I

Mass

Digitizaticn

terminate this invaluable

contribution to the progress of science and cultivation of the
arts that at the same Lime ef fectuates
Americans with Disabilities Act

‘.

-27-

the ideals espoused by the
The fair use analysis set

Case 1:05-cv-08136-DC Document 1088

Filed 11/14/13 Page 28 of 30

forth above with respect to Google Books applies here as well to
the libraries

use of their scans,

and if there is no liability

for copyright infringement on the libraries

part,

there can be

no liability on Google’s part.
CON CLUS I ON

For the reasons set forth above,

plaintiffs’

motion for

partial summary judgment is denied and Google’s motion for
summary judgment is granted.

Judgment will be entered in favor

of Google dismissing the Complaint.
proposed judgment,

on notice,

Google shall submit a

within five business days hereof.

SO ORDERED.
Dated:

November 14, 2013
New York, New York

DENNY
United States Circuit Judge
Sitting By Designation

-28-

Case 1:05-cw08136-DC Document 1088

Filed 11/14/13 Page 29 of 30

APPEARANCES

For Plaintiffs

BONI

ZACK LLC
Michael J
By
Boni, Esq,
Joshua D
Snyder, Esq
John E
Sindoni
Esq
15 St
Asaphs Road
Bala Cynwyd, PA I9CCI

FRANKFURT KURNIT KLEIN & SELZ P C
By
Edward H Rosenthal, Esq
Jeremy S
Goldman, Esq
Madison Avenue
New York, NY
1CC22

MILBERG LLP
By
Sanford P
Dumain, Esq
I Pennsylvania Plaza
New Ycrk, NY
iCli

For Defendant Gcoqle

Inc

DURIE TANGRI LLF
Daralyn J
By
Dune, Esq
Joseph C
Gratz
Esq
David McGowan, Esq
Genevieve P
Roslcff, Esq
2l Leidesdorff Street
San Francisco, CA
4111

Case 1:05-cv-08136-DC Document 1088

Filed 11114/13 Page 30 0130

For Amicus Curiae Digital
Humanities and Law Scholars

SAMUELSON LAW, TECHNOLOGY & PUBLIC POLICY CLINIC
By
Jennifer M Urban, Esq
Babak Siavcshy, Esq
Jason Schult2, Esq
University of California, Berkeley,
Schcol of Law
3E Simon Hall
Berkeley, CA
9fl2C
and
Matthew Sag, Esq
Loyola University of Chicagc School of Law
25 East Pearson Street
Chicago, IL
ECEII
-

-

For Amicus Curiae American Library
Asscciation, Association of
College and Research Libraries,
Association of Research Libraries,
and E]ectron.ic Frontier Foundation

JONATHAN BAND PLLC
By
Jonathan Band, Esq
2]. Dupont Circle, NW
Washington, DC
2CC3(

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