How many different books do you think someone could copy without permission and not violate any copyrights? In the case of Google, Inc., (hereinafter Google) the answer is tens of millions of books. How did this happen? Google received books from a collection of major libraries. Then the company scanned the books, provided the libraries with a digital copy of each book they scanned, and used the material to create its Google Books Project search function. The Authors Guild and a group of authors sued Google claiming copyright infringement, but they lost their case in U.S. District Court and recently lost their appeal to the U.S. Court of Appeals for the Second Circuit.
How could Google get away with unlicensed copying on such a massive scale? The answer is something called the fair use law. This doctrine was first created by the courts and is now contained in Section 107 of the U.S. Copyright Act. Under Section 107, the use of copyrighted material that is deemed to be a fair use is not considered infringement, and the Second Circuit panel determined that Google’s copying and search engine use of the millions of books it had obtained to be a fair use under the statute and its judicial interpretations.
While Google clearly tested the limits of the fair use law with respect to big business, this important intellectual property principle also has broad application to the day-to-day life of many individuals and small to medium-sized businesses that use copyrighted material for educational purposes, research, news reports and commentary, and content on commercial websites, etc. Many rely on the fair use law to shield them from infringement claims. The problem, however, is that what is considered fair use of copyrighted material is determined on a case by case basis using a four-part standard that is far from clear. While it is possible to discern some general guidelines for various types of usage, if you are using copyrighted material on more than a very limited basis, it is best to have an experienced intellectual property attorney review how you are using the copyrighted material to determine whether it is fair based on Section 107 and its judicial interpretation.
A quick look at the provisions of Section 107 reveals why that is the case. The statute directs the courts to consider four factors in its determination of whether the use of copyrighted material is fair use:
- The purpose and character of the use,
- The nature of the copyrighted work,
- The amount and substantiality of the portion used in relation
to the copyrighted work as a whole, and
- The effect of the use upon the potential market for or value of the copyrighted
The problem is that Section107 does not provide clear definition of the meaning of these tests. It leaves this up to the courts to do that. The courts evaluate fair use claims case by case based on the specific facts and circumstances involved.
In Authors Guild v. Google, Inc., the Second Circuit panel emphasized the first and fourth tests in tandem with the overarching goal of copyright law. They stated that “the ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption…. Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”
With that in mind, the court found that the purpose of Google’s use of the copyrighted material was transformative and created a new use for the works that was in the public interest. “Transformative uses,” the opinion stated, “tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”
Based on the facts of the case, the Second Circuit also found that Google had not usurped commercial opportunities that the authors of the copyrighted works had the exclusive rights to take advantage of. If the court had found that Google had lessened the value of the authors’ copyrights, the decision would likely have been very different.
If using copyrighted material is important to your job, business, studies, etc., or if you see that someone else is using your copyrighted material, it is best not to try and decipher whether the four-part fair use test has been met. The better course of action is to consult with an experienced intellectual property attorney such as those Kilgore & Kilgore. If you have a copyright question, email firstname.lastname@example.org or call us at 214-969-9099 for a free review of the facts of your case with a Dallas intellectual property attorney to see if you have a case worthy of pursuit. To learn more about copyrights, click here Copyright Law.
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