Google's triumph advances transformative use of copyrighted work

On Nov. 14, a New York federal court judge ruled to uphold Google’s ambitious project to scan and digitize millions of books from cooperating libraries into a massive, searchable online database. This was a victory not only for Google but also for the greater public good. Judge Denny Chin dismissed a copyright lawsuit brought by authors, finding that Google’s copying and indexing of more than 20 million books to create a new, highly useful search tool is protected by fair use.

Google Books digitizes entire copies of millions of books, the majority of which are out of print, and creates a comprehensive word index that helps readers, scholars, researchers and others to identify and find books. Google doesn’t display whole copies of books that are still under copyright, however; it allows users to see only limited snippets. After they have read previews through the database, users are then directed to external vendors, where they can find and purchase the books they are interested in. The Silicon Valley-based search engine giant describes the initiative as a service that “acts like a card catalog for the digital age.”

The Authors Guild, a professional organization representing more than 9,000 published writers, filed the lawsuit in 2005, along with other authors and publishers, to stop Google Books. The suit relied on an erroneous and exaggerated conviction that the law gives copyright holders the power to stop any unauthorized copying of their works, no matter how innovative or socially beneficial. As former U.S. Reps. Bob Barr and Pat Schroeder (the latter was then-president of the Association of American Publishers) wrote about the case at the time, “Our laws say if you wish to copy someone’s work, you must get their permission.”

But our laws do not say so. The fair use provision of the Copyright Act gives users the legal right to quote, rely on and copy existing works in order to create new works. Specifically, you do not need permission to copy someone’s work when your work transforms an existing work by adding value, creating new information, new aesthetics, or new insights and understandings, and does not supersede the market for the original work. The doctrine of fair use is why journalists don’t need permission to quote the books they review, why "The Daily Show" doesn’t have to ask Fox News for permission to show clips in order to make a joke, and why Google, Microsoft and Yahoo are able to copy Web pages and index the Internet to create search engines that millions of people rely on every day. Fair use is vital to our First Amendment commitment to free speech because it limits the power of copyright holders to censor speech and monopolize access to our cultural heritage.