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Google's Book-Scanning Project Is Public Service Appeals Court Says

By Christopher Coble, Esq. on October 16, 2015 | Last updated on March 21, 2019

For the past decade, Google has been scanning collections of books. And for the past decade, Google has faced legal opposition to its book-scanning project. But that opposition might finally be over.

A U.S. Appeals Court ruled that Google's book-scanning project provides a public service without violating intellectual property law. The case tested "the boundaries of fair use," and for now Google will be free to continue pushing those boundaries.

That's a Whole Lot of Fair Use

Fair use exceptions to copyright laws allow some unauthorized use of copyrighted works. Courts will generally apply a four-factor test to determine whether the unauthorized use of copyrighted material is fair:

  1. The purpose and character of the use (commercial vs. educational)
  2. The nature of the copyrighted work (imaginative vs. factual)
  3. The proportion of the work taken in relation to its entirety (small vs. large)
  4. The effect of the taking on the market for the original (small vs. large)

The appeals panel was unanimous in finding Google's practices were allowed under fair use, and cited the third factor in its ruling:

"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)."

Scanning the Horizon

To date, Google has scanned at least 20 million texts and made them searchable online. That project will continue, although the Authors Guild, who filed the suit on behalf of authors whose works had been scanned, could appeal to the Supreme Court.

Success at that level is far from certain, since the Second Circuit seemed assured in its interpretation of fair use: "The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals."

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