Who Owns the Copyright on 1921?

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

Few people have shaped modern American copyright law more than Judge Pierre Leval.

As I’ve traced over in the Technology section, Leval first proposed a new theory of “fair use” law in 1990. (He did it, by the way, in a journal overseen by a 28-year-old law student named Barack Obama.) Leval’s theory then propagated through the American judiciary. The Supreme Court cited it. It was used to justify search engines and rap songs. And last week, when Judge Leval ruled that Google Books is legal, he got to endorse that theory himself, from his Second Circuit bench, 25 years later.

It’s all very nice. You should go read the story. But I wanted to focus on what an interesting piece of legal thinking Judge Leval’s opinion is. When considering the legality of Google Books, he focuses both on hypothetical applications and how actual people use the actual software.

Here’s one example, first highlighted by Sarah Jeong, a writer for Motherboard, on Twitter:

If a student searched Google Books to learn when FDR became sick with polio, Leval writes, she might find the answer—1921—in a snippet from page 31 of Richard Goldberg’s The Making of Franklin D. Roosevelt. And then the student would be done! She could cite the book with confidence, but neither she nor her teacher would need to buy it or check it out of the library.

Here’s where it gets interesting. A fair use is not supposed to significantly damage the market for a copyrighted work, but this imagined situation might just damage the market. The student wouldn’t need to buy Goldberg’s book, after all. So how is Google Books, then, still fair use?

Because, writes Leval, none of this matters.

“What the searcher derived from the snippet was a historical fact,” he says. “Goldberg’s copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression.”

Indeed, according to U.S. law, facts can’t be copyrighted.

Leval adds: “The fact that, in the case of the student’s snippet search, the information came embedded in three lines of Goldberg’s writing, which were superfluous to the searcher’s needs, would not change the taking of an unprotected fact into a copyright infringement.”