Google Books and Fair Use: A Tale of Two Copyrights?

• Author: Raquel Xalabarder
• Position: Chair Professor of Intellectual Property, Universitat Oberta de Catalunya, Barcelona
• Pages: 53-59

Google Books and Fair Use: A Tale of Two Copyrights?

2014

53

1

Google Books and Fair Use: A

Tale of Two Copyrights?

by Raquel Xalabarder, Chair Professor of Intellectual Property, Universitat Oberta de Catalunya, Barcelona

© 2014 Raquel Xalabarder

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Raquel Xa labarder, Google Books and Fair Use: A Tale of Two Copyrights?, 5 (2014) JIPITEC 53, para 1.

Abstract: On 14 November 2013, the US Dis-

trict Court of the Southern District of New York issued

a major ruling1 in favour of the Google Books project,

concluding that Google’s unauthorized scanning and

indexing of millions of copyrighted books in the col-

lections of participating libraries and subsequently

making snippets of these works available online

through the “Google Books” search tool qualifies as

a fair use under section 107 USCA.2 After assuming

that Google’s actions constitute a prima facie case of

copyright infringement, Judge Chin examined the four

factors in section 107 USCA and concluded in favour

of fair use on the grounds that the project provides

“significant public benefits,” that the unauthorized

use of copyrighted works (a search tool of scanned

full-text books) is “highly transformative” and that it

does not supersede or supplant these works. The fair

use defence also excluded Google’s liability for mak-

ing copies of scanned books available to the libraries

(as well as under secondary liability since library ac-

tions were also found to be protected by fair use): it is

aimed at enhancing lawful uses of the digitized books

by the libraries for the advancement of the arts and

sciences. A previous ruling by the same court of 22

March 2011 had rejected a settlement agreement

proposed by the parties, on the grounds that it was

“not fair, adequate, and reasonable”.3

The Authors Guild has appealed the ruling.

A. The case

1 In 2004, Google launched the “Google Books” proj-

ect. The project includes the massive scanning of

books, the storage and indexation of all the digitized

contents and the making available to the public of

“snippets” of these works online through the search

engine “Google Books”. The scanning is done in co-

operation with several public and private libraries

throughout the United States and other countries.1

Google provides participating libraries with a dig-

ital copy of all scanned books in their collections.

2 Users can view only snippets of copyrighted books;

the full contents are available (and can be down-

loaded) only when the works are in the public do-

main. Therefore, unless there is a malfunctioning

(or a hacking) of the database, users cannot down-

load the full contents of works that are not in the

public domain.

3 On 20 September 2005, the Authors Guild – the big-



against Google.5 Shortly after, so did the Association

of American Publishers.6 The authors sought dam-

ages and injunctive relief; the publishers sought only

the latter. Both actions were consolidated on De-

cember 2006. Google’s main defence was fair use in

section 107 USCA. In 2006 the parties began negoti-

ations to settle the lawsuit and avoid a ruling which

would entail high risk for both of them.

4

After an initial 2008 settlement agreement which

raised many objections, an amended settlement

agreement (ASA) was submitted and preliminarily

approved by the District Court in November 2009.

After a long period of hearings and amicus briefs, the



the Agreement was “not fair, adequate and reason-

able” and urged the parties to negotiate further.7

5 

agreement in October 2012,8 but the Authors Guild

did not and carried on with the claim.

6 On 31 May 2012, the District Court granted the law-

suit class-action status;9 Google challenged this or-

der on appeal, alleging that the plaintiffs did not

adequately represent the interests of the class, or