Enter the Google Books case. In 2004, Google began scanning books—copyrighted and non-copyrighted alike—in academic libraries with the plan of making portions of that material available online for free. Users of Google Books now know how this works: You can search Google’s scanned-book database for a fact or a quote and see part of the page that includes that fact or quote. Google Books will then show you a “snippet” of the book without revealing the rest of the book. (It can also search its whole language database for certain words and chart their use over time, resulting in the infamous Google Ngrams.)
In 2005, the Authors Guild sued Google to halt the plan. The case has bounced through the courts since. The two parties almost settled in early 2011, when they proposed creating an online payment system that would have made Google Books more expansive than ever before—but a judge threw that out, saying it would give Google a “de facto monopoly.” In November 2013, that same judge, Denny Chin, issued a district-court ruling that found Google Books to be fair use.
“It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders,” wrote Judge Chin.
The Authors Guild appealed to the Second Circuit. And there it wound up back in the lap of a familiar figure—Judge Pierre Leval. Would Leval rule that Google Books really wasn’t the kind of transformational use he had in mind back in 1990?
No: In fact he ruled the opposite. As Grimmelmann told me, it’s as if Leval is saying: “This is transformative use. They got it exactly right.”
“For nearly 300 years, since shortly after the birth of copyright in England in 1710, courts have recognized that, in certain circumstances, giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge,” writes the judge in his decision.
Later he summarizes:
Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. 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.
In other words, Google Books is legal.
And not only that, but the case is likely resolved for good. In 2012, a district court ruled that Hathitrust, a university consortium that used Google Books’s scans to make books accessible to blind students, was not only a legal form of fair use but also required by the Americans with Disabilities Act. Experts say that the Supreme Court is unlikely to hear an appeal, because so many district court judges, and two different federal circuits, have found themselves so broadly in agreement about the nature of transformative use online.