Google's publication of electronic 'snippets' as part of plans to digitise books is "fair use" says US judge

Judge Denny Chin said that the Google Books project, through which the search giant scanned and digitised the contents of millions of books held in a number of libraries for public search, provided "significant public benefits" and was consistent with copyright laws. US trade association the Authors Guild is challenging Google's right to do so.

In the US, the fair use exemption to copyright law allows copyrighted material to be reproduced for the purposes of research and education, commentary, criticism and reporting. Whether the exemption applies to the reproduction of copyrighted works depends on the consideration of certain factors, including the purpose and character of use and whether it was for commercial gain or not, the nature of the copyrighted work, how much was reproduced and the effect of that use on the potential market for or value of the work.

The Authors Guild said that it would appeal the ruling. Its executive director, Paul Aiken, said that the case presented a "fundamental challenge" to the law of copyright that "merits review by a higher court".

The long-running case began in 2005, and was initially settled in 2008 when Google offered to pay authors' and publishers' rights groups a certain amount of money into a fund that would be used to compensate the writers of copyrighted works that were scanned. However, Judge Chin dismissed the settlement agreement in 2011, saying that it gave Google a "de facto monopoly" to copy books. The publishers have since settled separately.

Google has scanned more than 20 million books since 2004 and delivered digital copies to participating libraries, which include the collections of the New York Public Library, the Library of Congress and a number of university libraries, according to the judgment. However, it does not make the full text of copyrighted books publicly available and instead takes a number of "security measures" to prevent users from viewing complete copies of the books.

Judge Chin said in his ruling that, although Google was a commercial enterprise, the fact that it did not "engage in direct commercialisation of copyrighted works" was a relevant factor in favour of the use of the snippets amounting to fair use. In addition, its use of the copyrighted work was 'transformative' as it "help[ed] readers, scholars, researchers, and others find books", he said.

"In my view, Google Books provides significant public benefits," he said in his ruling. "It 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."

"It has become an invaluable research tool that permits students, teachers, librarians and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searchers of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers," he said.