One theme of our class has been that as science and technology change law, at the very least, is affected. New technology often leads to challenges of the current law, new application of laws, and even changes in the law. Google, once again, has been a party to a case in which advancing technology challenges and affects current law.
In 2004 Google launched its Google Books project with the goal of scanning all paper books into electronic copies searchable on the famous search engine. More than 20 million books and magazines have been successfully scanned into the search engine, but Google faced a class-action suit brought by authors under the copyright law.
Google used the Fair Use exception to the Copyright Act to defend its use of the books. Google never sought out permission from any authors nor does it compensate the authors for use of the books. But the program doesn’t provide the books to users for free either. If a book is still under copyright, Google allows users to search for phrases and simply provides the portions of a book that include or discuss that particular phrase.
Google has held since its launch that the Google Books program is consistent with and complies with copyright laws. While the Federal judge assumed that a prima facie case of copyright infringement existed, he further determined that this case falls under the Fair Use defense of the Copyright Act.
Judge Chin discusses each element presented in the Fair Use portion of the Copyright Act. First, he establishes that this new technology is transformative which satisfies the character and use element because it encourages and advances education and promotes science and art. Next, because the majority of the books scanned into the search engine are non-fiction books, the second factor of nature of the copyrighted work is in favor of fair use. With regard to the amount and substantiality of use factor, the court discusses that although the entire book is scanned verbatim, the functionality of the program requires the full book to be scanned and it limits the amount of the book displayed in response to each search made by a user. Lastly, the court discussed that Google’s program presents great potential and value to the market. Together, the court decided, these factors weigh heavily in favor of the Fair Use exception.
In the end, Google Books provides numerous benefits to the public and constitutes Fair Use according to the district judge. How this ruling will affect copyright law and the book market in the future will only be seen in time. But for now, the new technology is not changing the law but changing and, in some ways, expanding its application.
17 U.S.C.A. § 107