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In Google case, court finds creating an index is fair use

Copyright Card Catalog Files.
Copyright Card Catalog Files, Popular Electronics, 1975, by Michael Holley.

This is how I always describe Google Book Search (GBS) – it’s an index, and in this case, a truly magnificent one.

Today we learned that the Second Circuit Court of Appeals upheld the district court’s summary judgment that the GBS is a transformative fair use, so it’s happy days for people in library land. Many will know that this Authors Guild v Google litigation has been going on for years with many twists and turns. See Jonathan Band’s cool chart (which now needs to be updated!)

The appeals court ruling included a statement that “the exclusive rights of copyright do not include the exclusive right to supply information” about books. I think this is the key to what the Authors Guild (and others) did not understand. Even though copyrighted works were scanned in their entirety, the original, creative expression—that which is protected by copyright—is not infringed. The scanning implicates individual words in books (and these words can be searched in order to find books). It all seems very straightforward to me—no one holds copyright in words, thank God.

Trying to squeeze out a dollar for words surely does not advance the progress of science and the useful arts. And, imagine the chaos of people trying to register words for copyright protection. Now that would be a burden for rights holders.

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Carrie Russell

Carrie Russell is the director of the Program on Public Access to Information in the Washington Office. Her portfolio includes copyright, international copyright, accessibility, e-books, and other public policy issues. She has an MLIS from the University of Wisconsin-Milwaukee and an MA in media arts from the University of Arizona.


  1. John T. Mitchell John T. Mitchell

    The first time I ever used Google Book Search, several years ago, I found a book that had very valuable information pertaining to my area of inquiry, but buried in a subsection of a chapter. No information about the book (title, subject matter, or even the chapter heading) revealed a clue that the author had covered the subject I was interested in, and I can’t imagine that even the most meticulous old-style card catalog would have. This enabled me to search out the book and get the full picture. Just as some voters vote against their own best interests because they believe some facile explanation (e.g., give rich people more money and they will hire you), it puzzles me why so many authors fear the very tools that allow their works to be discovered.

    It is certainly possible that some people will find out that the book they thought might be useful is of no use at all — just as using the old card catalog system might lead one to a book on the shelf, only to learn that it is not useful. And it may even be the case that the context information provides the full answer, with no need to consult the fool book; but that’s a small drop in the bucket of potentially greater exposure for an author whose works might not otherwise be found at all.

  2. Nancy Gravatt Nancy Gravatt

    Dear library advocate,
    Thanks for sharing your thoughts. That’s a perfect example of why the Google Book Search benefits so many authors!
    Yours truly,
    The District Dispatch

  3. As a librarian, author and historical impersonator specializing in “fascinating women history forgot,” I have found Google book search invaluable in locating deeply-buried information on these little-known women. As the previous commentator mentioned, when it is just a few lines or casual mention, I save the library the cost of ILLing a book that I would not need (many things I’ve found are in out of print books), but on occasion these searches have also led me to major sources that I wouldn’t have known to search and that I have subsequently found in my library, ILLed or purchased. Scan on Google!

  4. Sandy Thatcher Sandy Thatcher

    Does the ALA still support the view put forward in the Code of Best Practices for Fair Use in Academic Libraries that the digitization of scholarly books and journal articles for use in the classroom is transformative because the purpose of that use is pedagogical, a use different from the original aim of the authors to advance research in their fields by addressing other scholars, not students in the classroom? And does it believe that novels, aimed at the general public, can be re-purposed for classroom use also in this allegedly “transformative” way? Judge Leval told me several years ago that he did not think transformative use could justify this practice because of the market substitution involved, albeit in a secondary market. Does the ALA think otherwise?

  5. Carrie Russell Carrie Russell

    Hello Sandy:

    ALA does support the Code of Best Practices for Fair Use in Academic libraries which says that some uses are transformative and other uses are not. The Code does not support the notion that all uses of scholarly books and journals are transformative.

    The recent emphasis on transformative fair use does not negate the existence of “plain fair use.” Congress gave “multiple copies for classroom use” as an exemplar of fair use. Non-profit educational institutions are favored in a fair use analysis. So there are some uses that are transformative, some that are fair use, and some that are not fair use based on an examination of the four factors of fair use.

    I’m not aware of educators digitizing novels aimed at the general public. Where does this happen? But I’ll play — I think there is a possibility — depending on the situation — that digitization of an entire novel could be fair, perhaps where the sufficient number of copies of the novel cannot be found in the marketplace , new or used, and requests for permission go unanswered. Perhaps then portions of the novel could be digitized throughout the semester so all the students have access via password protection. BTW libraries spend a lot of money buying ebooks of novels aimed at the general public.

    It’s been my experience directly working with librarians, that they want to do what is reasonable and just. K-12 institutions following the common core are finding that for some uses of works require permission, but too often the rights holder comes back with a licensing fee that is more than the cost of the entire book, so you might as well buy the entire book, but only a number of books can be located etc. So the teachers decides not to use the book, and the author of the book remains unknown to the students.

    But my post really focused on the Google Books case (a transformative fair use). I don’t think people should have to pay a fee to look for a book. I understand that some want to monetize “looking for books” and I disagree because how in the world does that promote the science and useful arts? Paying for looking is totally against the purpose of the copyright law, yes? If authors do not want to be found via Google Books, they can opt out, but they miss out on a good no-cost discovery opportunity. CR

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