Important Developments in Fair Use Cases

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On Thursday, November 14, 2013, Judge Denny Chin finally issued a ruling in a case begun in 2005 when a writers’ organization sued Google over their book-scanning project. The OTW was pleased to see that there is a lot in the case that supports fans engaged in creating and sharing transformative works, and sites (like An Archive of Our Own) that host their works.

While the case itself concerned Google’s scans of entire books – both fiction and nonfiction, both public domain and still protected by copyright law – the judge’s analysis of why Google Books are transformative and protected by Fair Use considerations is in line with the OTW’s longstanding analysis of Fair Use.

Google Books was sued by book publishers who felt that Google’s scans violated the copyrights they had in the books. Google put the contents of millions of books into a database that users could search, but Google Books would only display a page or two of a book’s contents; there were no ads on Google Books pages that hosted scans.

Google argued that scanning the books and hosting the contents in a searchable database was transformative and thus did not infringe on the publishers’ copyrights. The court applied the four-part standard used to determine whether a work is transformative or infringing, and held that most of the factors strongly favored Fair Use.

The court said that Google Books “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.”

While the case itself made no mention of fanworks, the court’s reasoning about the transformative benefits of Google Books may apply at least as much–if not more–to fanworks. The court noted that one of the reasons Google Books was transformative was because it “adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.” In addition, the court considered ways in which Google Books allow people to discover books they were not already aware of. As the court explained, the fact that “Google Books provides a way for authors’ works to become noticed” provided strong support for the court’s Fair Use decision. The same arguments undoubtedly apply to fanworks, which create new information, aesthetics, insights, and understandings to their source material, and attract fans to authors, music, shows, movies, games, and other works they might not have discovered without fandom connections. Thus, although this decision doesn’t relate directly to fanworks, it does embody legal principles that the OTW has long supported.

The Author’s Guild, the group that sued Google, said that they would appeal the decision — so this long-running case may continue on in the courts. However, the ruling in a companion case, of Authors Guild v HathiTrust, which is also being appealed, suggests that fair use arguments are being looked upon favorably by the courts, whether it’s a non-profit entity, such as a group of libraries, or a for-profit entity such as Google. In addition, this week the U.S. Supreme Court let stand an appellate court ruling in Prince v. Cariou, which supports the rights of remix artists under fair use.