by Sahana Pal
In a landmark decision that brought an end to the decade-long legal battle between Authors Guild and Google, the US Supreme Court dismissed the former’s writ of certiorari on 18 April 2016, effectively agreeing to the Second Circuit Court of Appeals decision that Google has not violated any copyright law in creating their electronically searchable mammoth book library of more than 20 million books.
The Google Books Library Project, a service that started in December 2004, makes and retains digital copies of books and magazines submitted to it by authors and publishers through the Google Books Partner Program, allows the libraries that submitted a book to download and retain a digital copy, and allows the public to search the texts of the digitally copied books and see displays of snippets of text.
Authors Guild, America’s oldest and largest professional organization for writers then brought a suit against Google in 2005, along with Association of American Publishers, alleging “massive copyright infringement”. Their main issue was that Google’s inclusion of book “snippets” was too substantial in nature, thus challenging the definition of “fair use” under section 107 of the US Copyright Code.
The suits were consolidated and a settlement reached, where Google decided to pay $125 million to copyright holders in return for the right to continue using the scanned results. But then a district court ruling rejected the settlement on grounds of Google’s unfair competition advantage. An amended suit was filed in 2011, which got dismissed in 2013, as the district court found the project abiding by the rules of fair use. Authors Guild appealed.
The Court of Appeals for the Second Circuit concluded that Google’s copying was transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), did not offer the public a meaningful substitute for matter protected by the plaintiffs’ copyrights, and satisfied § 107’s test for fair use. Specifically, the Court noted that:
[T]he purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it.
Snippet view adds important value to the basic transformative search function, which tells only whether and how often the searched term appears in the book. Merely knowing that a term of interest appears in a book does not necessarily tell the searcher whether she needs to obtain the book, because it does not reveal whether the term is discussed in a manner or context falling within the scope of the searcher’s interest. For example, a searcher seeking books that explore Einstein’s theories, who finds that a particular book includes 39 usages of “Einstein,” will nonetheless conclude she can skip that book if the snippets reveal that the book speaks of “Einstein” because that is the name of the author’s cat. In contrast, the snippet will tell the searcher that this is a book she needs to obtain if the snippet shows that the author is engaging with Einstein’s theories.
Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher.
Authors Guild expressed disappointment on Supreme Court’s affirmation of the decision, saying the Court was “blinded by the public benefit arguments” resulting in a “colossal loss” for the authors, as effectively the ruling has held “Google, not authors, deserves to profit from the digitization of their books.” Criticizing the Second Circuit’s lack of empathy towards the emerging online book market, Mary Rasenberger, executive director of the Authors Guild commented that “Authors are already among the most poorly paid workers in America; if tomorrow’s authors cannot make a living from their work, only the independently wealthy or the subsidized will be able to pursue a career in writing, and America’s intellectual and artistic soul will be impoverished.”
Google however, was all praises for the judgment, as it believed the decision was in the best interest of the authors as well as the public.
Nevertheless, what can be said for sure without taking sides, is that the decision has certainly stretched the boundaries of “fair use exception” under copyright laws, and opened up a whole new dimension of archival digitization. Especially for non-profits and libraries with limited financial resources, this decision comes as a ray of new hope, as Google Books finally become “legal” after a decade.
Assistant Editor, QMJIP
 Full decision available at http://www.supremecourt.gov/orders/courtorders/041816zor_2co3.pdf
 Full decision available at http://www.ca2.uscourts.gov/decisions/isysquery/b3f81bc4-3798-476e-81c0-23db25f3b301/1/doc/13-4829_opn.pdf