The Evolving Law of Fair Use

The Google Books case would make a terrible movie. It started promisingly enough, with a cold open on Google’s ambitious book scanning project, and quickly established its central conflict, between Google and irate copyright holders. Then the plot took a breathtaking twist when it was revealed that Google and the authors and publishers had secretly been negotiating a settlement. But after the tense second act culminated in the brilliantly argued fairness hearing, the plot just tailed off. Sure, Judge Chin rejected the settlement, the Authors Guild brought Google’s library partners into the litigation, the publishers settled, and two judges found that the book scanning was fair use—but all of it had the repetitive feeling of a Bruckheimer-buster. Haven’t I seen these explosions somewhere else?

Times have changed, and technology has changed, and copyright law has changed, as well. Judge Chin’s decision bringing to a close (for now) the main Google Books litigation didn’t so much make new law as draw an emphatic underline under existing doctrines. Copyright law has taken account of digitization and search technology. They are accepted parts of the legal landscape now, and future decisions are not likely to call their legality into serious question.

Take the holding that search engines make a transformative use of the content they index. The Kelly, Field cases said the same—but it was possible to maintain they were other than settled law. That’s a Ninth Circuit doctrine. That’s a Web-only doctrine. That’s implied license in disguise. And so on—but no more. Search engine fair use is broadly established, to the point that even judges who deny its application on the facts before them accept the broader principle.

Or take the holding that there is no discernable market for licensing short snippets to illustrate. Judge Chin, like Judge Baer before him in the HathiTrust case against Google’s library partners, viewed Google Book Search as a pure pie-higher-er. The gains from making books searchable do not come out of the pockets of authors. Indeed, by making it easier for readers to find books, book search makes it easier for authors to find readers. Judges have come to accept the idea that these long-tailed digital geese lay golden eggs only so long as they live; cut them up in search of licensing fees and there is nothing inside.

Judge Chin and Judge Baer are also attuned to the public benefits of technological tools; their opinions have no difficulty explaining how digitization promotes the fundamental copyright goals of access, learning, and future creativity. This functionalist approach to fair use is part of the same trend that has brought us Cariou v. Prince and A.V. v. iParadigms.The Authors Guild’s entire litigation position has been based around three “C”s: that creators should have control over copies. But this formalism led it down the disastrous path of focusing heavily on the number of copies of each book made by Google and retained by the libraries in their data centers, and into pressing hard the obvious loser of an argument that libraries’ section 108 rights are an absolute limit on fair use. Such arguments are simply not persuasive to judges who are sensitive to the purposes of copyright and of fair use.

This is not the end of the Google Books movie. Both cases are still on appeal. And certainly the trend in current copyright cases is not wholly in the direction of technologists’ and readers’ rights. But this part of the copyright landscape — mass digitization and fair use — seems to have shifted fairly definitively. Not all at once in an earthquake, but slowly, almost geologically on the scale of Internet time. Now that’s very gradual change we can believe in.

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