usnc SDN.l'··DOC{]M~NT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORKELECTRON[C~LL ¥ ·FILED-x

THE AUTHORS GUILD, INC., and
BETTY MILES, JOSEPH GOULDEN,
and JIM BOUTON, on behalf ofthemselves and all others
similarly situated,

DOC#:_____~"'I-""--....

DATE FltEJ):

II 11'1113
v,

OPINION

Plaintiffs,

05 Civ. 8136 (DC)- against ­GOOGLE INC.,
Defendant.
- -x
APPEARANCES:(See last page)

CHIN, Circuit Judge

Since 2004, when it announced agreements with several
major research libraries to digitally copy books in theircollections, defendant Google Inc.
than twenty million books.

("Google") has scanned more

It has delivered digital copies toparticipating libraries, created an electronic database of books,
and made text available for online searching through the use of"snippets."

Many of the books scanned by Google, however, were

under copyright, and Google did not obtain permission from the
copyright holders for these usages of their copyrighted works.

As a consequence, in 2005, plaintiffs brought this class action
charging Google with copyright infringement.

Before the Court are the parties' cross-motions forsummary judgment with respect to Google's defense of fair use
under § 107 of the Copyright Act, 17 U.S.C. § 107.

For thereasons set forth below, Goggle's motion for summary judgment isgranted and plaintiffs' motion for partial summary judgment isdenied.

Accordingly, judgment will be entered in favor of Google

dismissing the case.
BACKGROUNDA.

The Facts
For purposes of this motion, the facts are not in

dispute.

(See 9/23/13 Tr. 10-11, 15, 25-28 (Doc. No. 1086)).1

They are summarized as follows:
1.

The Parties
Plaintiff Jim Bouton, the former pitcher for the New

York Yankees, is the legal or beneficial owner of the U.S.
copyright in the book Ball Four.

Plaintiff Betty Miles is thelegal or beneficial owner of the U.S. copyright in the book The
Trouble with Thirteen.

Plaintiff Joseph Goulden is the legal or

beneficial owner of the U.S. copyright in the book The

1When pressed at oral argument to identify any factualissues that would preclude the award of summary judgment,
plaintiffs' counsel was unable to do so. (Id. at 25-26).
-2-

Superlawyers:

The Small and Powerful World of the Great

Washington Law Firms.

(Google Resp. ¶¶ 1-3).2

All three books

have been scanned by Google and are available for search on
Google's website, without plaintiffs' permission.
¶ 4).

(Google Resp.

Plaintiff The Authors Guild, Inc., is the nation's largest

organization of published authors and it advocates for andsupports the copyright and contractual interests of publishedwriters.

(Google Resp. ¶¶ 7-8).
Google owns and operates the largest Internet searchengine in the world.

(Google Resp. ¶ 9).

Each day, millions ofpeople use Google's search engine free of charge; commercial andother entities pay to display ads on Google's websites and onother websites that contain Google ads.

(Google Resp. ¶ 10).

Google is a for-profit entity, and for the year ended December
31, 2011, it reported over $36.5 billion in advertising revenues.
(Google Resp. ¶ 11).

2

"Google Resp." refers to Google's Responses andObjections to plaintiffs' Statement of Undisputed Facts in
Support of Their Motion for Partial Summary Judgment (Doc. No.
1077). "Pl. Resp." refers to plaintiffs' Response to Google's
Local Rule 56.1 Statement (Doc. No. 1071). I have relied on theparties' responses to the statements of undisputed facts only tothe extent that factual statements were not controverted.
-3-

2.

The Google Books ProjectIn 2004, Google announced two digital books programs.

The first, initially called "Google Print" and later renamed the"Partner Program," involved the "hosting" and display of material
provided by book publishers or other rights holders.
Resp. ¶¶ 13, 14).

(GoogleThe second became known as the "Library

Project," and over time it involved the digital scanning of booksin the collections of the New York Public Library, the Library ofCongress, and a number of university libraries.

(Clancy Decl. ¶5 (Doc. No. 1035); Google Resp. ¶¶ 25, 26, 27; Pl. Resp. ¶ 14).
The Partner Program and the Library Project together
comprise the Google Books program ("Google Books").
Resp. ¶ 15).

(GoogleAll types of books are encompassed, including

novels, biographies, children's books, reference works,
textbooks, instruction manuals, treatises, dictionaries,
cookbooks, poetry books, and memoirs.
Decl. ¶ 4 (Doc. No. 1041)).

(Pl. Resp. ¶ 6; Jaskiewicz

Some 93% of the books are

non-fiction while approximately 7% are fiction.3

3

Both in-print

These estimates are based on studies of the contents of
the libraries involved. (Def. Mem. at 7 (Doc. No. 1032) (citing
Brian Lavoie and Lorcan Dempsey, Beyond 1923: Characteristics ofPotentially In-Copyright Print Books in Library Collections, 15D-Lib 11/12 (2009), available at http://www.dlib.org/dlib/
november09/lavoie/11lavoie.html (last visited November 12,-4-and out-of-print books are included, although the great majority
are out-of-print.

(Jaskiewicz Decl. ¶ 4).

In the Partner Program, works are displayed withpermission of the rights holders.

(Google Resp. ¶ 16).

The

Partner Program is aimed at helping publishers sell books andhelping books become discovered.

(Google Resp. ¶ 18).

Initially, Google shared revenues from ads with publishers orother rights holders in certain circumstances.

In 2011, however,

Google stopped displaying ads in connection with all books.
(Google Resp. ¶¶ 17, 21; Dougall Decl. ¶¶ 5-8 (Doc. No. 1076)).
Partners provide Google with a printed copy of their books forscanning, or a digital copy if one already exists.
¶ 19).

Partners decide how much of their books -- from a few

sample pages to the entire book -- are browsable.
¶ 20).

(Google Resp.

(Google Resp.

As of early 2012, the Partner Program included

approximately 2.5 million books, with the consent of some 45,000
rights holders.

(Google Resp. ¶ 24).

As for the Library Project, Google has scanned morethan twenty million books, in their entirety, using newlydeveloped scanning technology.

2013)).
26).

(Google Resp. ¶¶ 28, 29).

The numbers are not disputed.

-5-(See 9/23/2013 Tr. atPursuant to their agreement with Google, participating libraries
can download a digital copy of each book scanned from theircollections.

(Google Resp. ¶ 30).

Google has provided digitalcopies of millions of these books to the libraries, in accordancewith these agreements.

(Google Resp. ¶ 85).

Some libraries

agreed to allow Google to scan only public domain works, whileothers allowed Google to scan in-copyright works as well.
(Google Resp. ¶ 36).
Google creates more than one copy of each book it scansfrom the library collections, and it maintains digital copies ofeach book on its servers and back-up tapes.
41).

(Google Resp. ¶¶ 40,

Participating libraries have downloaded digital copies ofin-copyright books scanned from their collections.
¶¶ 53, 54).

(Google Resp.

They may not obtain a digital copy created fromanother library's book.

(Jaskiewicz Decl. ¶¶ 6, 8).

Thelibraries agree to abide by the copyright laws with respect tothe copies they make.

(Clancy Decl. ¶ 5).

Google did not seek or obtain permission from the
copyright holders to digitally copy or display verbatim
expressions from in-copyright books.

(Google Resp. ¶¶ 53, 54).

Google has not compensated copyright holders for its copying ofor displaying of verbatim expression from in-copyright books or-6-its making available to libraries for downloading of digitalcopies of in-copyright books scanned from their collections.
(Google Resp. ¶ 55).
3.

Google Books
In scanning books for its Library Project, including

in-copyright books, Google uses optical character recognition
technology to generate machine-readable text, compiling a digital
copy of each book.

(Google Resp. ¶ 62; Pl. Resp. ¶ 18;

Jaskiewicz Decl. ¶ 3).

Google analyzes each scan and creates anoverall index of all scanned books.

The index links each word orphrase appearing in each book with all of the locations in all of
the books in which that word or phrase is found.

The index

allows a search for a particular word or phrase to return aresult that includes the most relevant books in which the word orphrase is found.

(Clancy Decl. ¶ 6; Pl. Resp. ¶¶ 22-26).

Because the full texts of books are digitized, a user can search
the full text of all the books in the Google Books corpus.
(Clancy Decl. ¶ 7; Google Resp. ¶ 42).
Users of Google's search engine may conduct searches,using queries of their own design.

(Pl. Resp. ¶ 10).

In

response to inquiries, Google returns a list of books in which
the search term appears.

(Clancy Decl. ¶ 8).
-7-

A user can clickon a particular result to be directed to an "About the Book"
page, which will provide the user with information about the bookin question.

The page includes links to sellers of the books

and/or libraries that list the book as part of their collections.
No advertisements have ever appeared on any About the Book pagethat is part of the Library Project.

(Clancy Decl. ¶ 9).

For books in "snippet view" (in contrast to "full view"
books), Google divides each page into eighths -- each of which isa "snippet," a verbatim excerpt.

(Google Resp. ¶¶ 43, 44).

Eachsearch generates three snippets, but by performing multiple
searches using different search terms, a single user may view far
more than three snippets, as different searches can return
different snippets.

(Google Resp. ¶ 45).

For example, by making

a series of consecutive, slightly different searches of the book
Ball Four, a single user can view many different snippets fromthe book.

(Google Resp. ¶¶ 46, 47).
Google takes security measures to prevent users fromviewing a complete copy of a snippet-view book.

For example, auser cannot cause the system to return different sets of snippets
for the same search query; the position of each snippet is fixedwithin the page and does not "slide" around the search term; only
the first responsive snippet available on any given page will be-8-returned in response to a query; one of the snippets on each pageis "black-listed," meaning it will not be shown; and at least one
out of ten entire pages in each book is black-listed.
Resp. ¶¶ 48-50; Pl. Resp. ¶¶ 35, 37-40).

(GoogleAn "attacker" who tries

to obtain an entire book by using a physical copy of the book tostring together words appearing in successive passages would be
able to obtain at best a patchwork of snippets that would be
missing at least one snippet from every page and 10% of all
pages.

(Pl. Resp. ¶ 41).

In addition, works with text organizedin short "chunks," such as dictionaries, cookbooks, and books ofhaiku, are excluded from snippet view.
4.

(Pl. Resp. ¶ 42).

The Benefits of the Library Projectand Google Books
The benefits of the Library Project are many.

First,

Google Books provides a new and efficient way for readers andresearchers to find books.

(See, e.g., Clancy Decl. Ex. G).

It

makes tens of millions of books searchable by words and phrases.
It provides a searchable index linking each word in any book to
all books in which that word appears.

(Clancy Decl. ¶ 7).

Google Books has become an essential research tool, as it helps
librarians identify and find research sources, it makes theprocess of interlibrary lending more efficient, and it-9-

facilitates finding and checking citations.

(Br. of Amici Curiae

American Library Ass'n et al. at 4-7 (Doc. No. 1048)).

Indeed,Google Books has become such an important tool for researchers
and librarians that it has been integrated into the educational
system -- it is taught as part of the information literacy
curriculum to students at all levels.

(Id. at 7).

Second, in addition to being an important reference
tool, Google Books greatly promotes a type of research referred
to as "data mining" or "text mining."(Br. of Digital Humanities

and Law Scholars as Amici Curiae at 1 (Doc. No. 1052)).

GoogleBooks permits humanities scholars to analyze massive amounts ofdata -- the literary record created by a collection of tens of
millions of books.

Researchers can examine word frequencies,

syntactic patterns, and thematic markers to consider how literarystyle has changed over time.

(Id. at 8-9; Clancy Decl. ¶ 15).

Using Google Books, for example, researchers can track thefrequency of references to the United States as a single entity("the United States is") versus references to the United Statesin the plural ("the United States are") and how that usage haschanged over time.

(Id. at 7).

The ability to determine howoften different words or phrases appear in books at different
times "can provide insights about fields as diverse as-10-

lexicography, the evolution of grammar, collective memory, theadoption of technology, the pursuit of fame, censorship, andhistorical epidemiology."

Jean-Baptiste Michel et al.,Quantitative Analysis of Culture Using Millions of DigitizedBooks, 331 Science 176, 176 (2011) (Clancy Decl. Ex. H).
Third, Google Books expands access to books.

In

particular, traditionally underserved populations will benefit as
they gain knowledge of and access to far more books.

GoogleBooks provides print-disabled individuals with the potential tosearch for books and read them in a format that is compatible
with text enlargement software, text-to-speech screen accesssoftware, and Braille devices.

Digitization facilitates theconversion of books to audio and tactile formats, increasing
access for individuals with disabilities.

(Letter from Marc

Maurer, President of the National Federation for the Blind, to J.
Michael McMahon, Office of the Clerk (Jan. 19, 2010) (Doc. No.
858)).

Google Books facilitates the identification and access ofmaterials for remote and underfunded libraries that need to makeefficient decisions as to which resources to procure for theirown collections or through interlibrary loans.
Curiae American Library Ass'n at 5-6).

-11-(Br. of Amici

Fourth, Google Books helps to preserve books and givethem new life.

Older books, many of which are out-of-print books

that are falling apart buried in library stacks, are being
scanned and saved.

See Authors Guild v. Google Inc., 770 F.

Supp. 2d 666, 670 (S.D.N.Y. 2011).

These books will now beavailable, at least for search, and potential readers will bealerted to their existence.
Finally, by helping readers and researchers identify
books, Google Books benefits authors and publishers.

When a user

clicks on a search result and is directed to an "About the Book"
page, the page will offer links to sellers of the book and/or
libraries listing the book as part of their collections.
Decl. ¶ 9).

(Clancy

The About the Book page for Ball Four, for example,

provides links to Amazon.com, Barnes&Noble.com, Books-A-Million,
and IndieBound.

(See Def. Mem. at 9).

A user could simply clickon any of these links to be directed to a website where she could
purchase the book.

Hence, Google Books will generate newaudiences and create new sources of income.
As amici observe:"Thanks to . . . [Google Books],librarians can identify and efficiently sift through possible
research sources, amateur historians have access to a wealth ofpreviously obscure material, and everyday readers and researchers-12-can find books that were once buried in research libraryarchives."
B.

(Br. of Amici Curiae American Library Ass'n at 3).

Procedural History
Plaintiffs commenced this action on September 20, 2005,

alleging, inter alia, that Google committed copyright
infringement by scanning copyrighted books and making themavailable for search without permission of the copyright holders.
From the outset, Google's principal defense was fair use under §107 of the Copyright Act, 17 U.S.C. § 107.
After extensive negotiations, the parties entered into
a proposed settlement resolving plaintiffs' claims on a classwide basis.

On March 22, 2011, I issued an opinion rejecting the

proposed settlement on the grounds that it was not fair,adequate, and reasonable.

Authors Guild v. Google Inc., 770 F.

Supp. 2d 666 (S.D.N.Y. 2011).
Thereafter, the parties engaged in further settlement
discussions, but they were unable to reach agreement.

The

parties proposed and I accepted a schedule that called for thefiling of plaintiffs' class certification motion, the completionof discovery, and then the filing of summary judgment motions.
(See 9/16/11 Order (Doc. No. 982)).

Plaintiffs filed a fourth

amended class action complaint (the "Complaint") on October 14,-13-

2011.

(Doc. No. 985).

While the dates in the schedule were

subsequently extended, the sequence of events was retained, withthe class certification motion to precede the summary judgment
motions, and adding dates for Google's filing of a motion todismiss the Authors Guild's claims.

(See, e.g., 1/17/12 Order(Doc. No. 996); 3/28/12 Order (Doc. No. 1007)).
Plaintiffs filed their class certification motion and
Google filed its motion to dismiss the Authors Guild's claims.
On May 31, 2012, I issued an opinion denying Google's motion todismiss and granting the individual plaintiffs' motion for classcertification.

Authors Guild v. Google Inc., 282 F.R.D. 384(S.D.N.Y. 2012).
On June 9, 2012, I issued an order re-setting thebriefing schedule for the summary judgment motions.
Order (Doc. No. 1028)).

(6/19/12

The parties thereafter filed the instantcross-motions for summary judgment.

Before the motions were

fully submitted, however, the Second Circuit issued an order on
September 17, 2012, staying these proceedings pending aninterlocutory appeal by Google from my decision granting classcertification.

(9/17/12 Order (Doc. No. 1063)).

On July 1, 2013, without deciding the merits of theappeal, the Second Circuit vacated my class certification-14-

decision, concluding that "resolution of Google's fair use
defense in the first instance will necessarily inform and perhaps
moot our analysis of many class certification issues."

Authors

Guild, Inc. v. Google Inc., 721 F.3d 132, 134 (2d Cir. 2013).
The Second Circuit remanded the case "for consideration of thefair use issues."

Id. at 135.

On remand, the parties completed the briefing of thesummary judgment motions.
2013.

I heard oral argument on September 23,

I now rule on the motions.
DISCUSSION
For purposes of these motions, I assume that plaintiffs

have established a prima facie case of copyright infringement
against Google under 17 U.S.C. § 106.

See Feist Publ'ns, Inc. v.

Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

Google has

digitally reproduced millions of copyrighted books, including theindividual plaintiffs' books, maintaining copies for itself on
its servers and backup tapes.

See 17 U.S.C. § 106(1)(prohibiting unauthorized reproduction).

Google has made digitalcopies available for its Library Project partners to download.
See 17 U.S.C. § 106(3) (prohibiting unauthorized distribution).
Google has displayed snippets from the books to the public.
17 U.S.C. § 106(5) (prohibiting unauthorized display).
-15-

See

Googlehas done all of this, with respect to in-copyright books in the
Library Project, without license or permission from the copyrightowners.

The sole issue now before the Court is whether Google's

use of the copyrighted works is "fair use" under the copyright
laws.
A.

For the reasons set forth below, I conclude that it is.

Applicable Law
Fair use is a defense to a claim of copyright

infringement.

The doctrine permits the fair use of copyrighted

works "to fulfill copyright's very purpose, '[t]o promote theProgress of Science and useful Arts.'"

Campbell v. Acuff-Rose

Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art.
I, § 8, cl. 8)); accord Cariou v. Prince, 714 F.3d 694, 705 (2dCir. 2013).

Copyright law seeks to achieve that purpose byproviding sufficient protection to authors and inventors tostimulate creative activity, while at the same time permitting
others to utilize protected works to advance the progress of thearts and sciences.

See Eldred v. Ashcroft, 537 U.S. 186, 212(2003); Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006); Hon.
Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev.
1105, 1107-08 (1990).

As the Supreme Court has held, "[f]rom theinfancy of copyright protection, some opportunity for fair use of
copyrighted materials has been thought necessary to fulfill-16-

copyright's very purpose."

Campbell, 510 U.S. at 575; see also

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,
560 (1985) (recognizing "the latitude for scholarship and comment
traditionally afforded by fair use").
The fair use doctrine is codified in § 107 of the
Copyright Act, which provides in relevant part as follows:[T]he fair use of a copyrighted work, . . .
for purposes such as criticism, comment, news
reporting, teaching (including multiple
copies for classroom use), scholarship, or
research, is not an infringement of
copyright. In determining whether the use
made of a work in any particular case is afair use the factors to be considered shall
include -(1) the purpose and character ofthe use, including whether such use
is of a commercial nature or is fornonprofit educational purposes;(2) the nature of the copyrighted
work;(3) the amount and substantialityof the portion used in relation to
the copyrighted work as a whole;and(4) the effect of the use upon thepotential market for or value ofthe copyrighted work.
17 U.S.C. § 107.
The determination of fair use is "an open-ended andcontext-sensitive inquiry," Blanch v. Koons, 467 F.3d at 251, and-17-thus the fair use doctrine calls for "case-by-case analysis,"
Campbell, 510 U.S. at 577; see also Harper & Row, 471 U.S. at
553.

The four factors enumerated in the statute are

non-exclusive and provide only "general guidance"; they are to be
explored and weighed together, "in light of the purposes of
copyright."

Campbell, 510 U.S. at 578-79; Harper & Row, 471 U.S.

at 560-61.

As fair use is an affirmative defense to a claim of

copyright infringement, the proponent carries the burden of proof
as to all issues in dispute.

Am. Geophysical Union v. Texaco

Inc., 60 F.3d 913, 918 (2d Cir. 1994); see also Campbell, 510
U.S. at 590.
A key consideration is whether, as part of the inquiry
into the first factor, the use of the copyrighted work is"transformative," that is, whether the new work merely"supersedes" or "supplants" the original creation, or whether it:
instead adds something new, with a further
purpose or different character, altering thefirst with new expression, meaning, or
message; it asks, in other words, whether andto what extent the new work is"transformative."
Campbell, 510 U.S. at 579 (quoting Leval, Toward a Fair UseStandard, 103 Harv. L. Rev. at 1111); accord Bill Graham Archives
v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006)-18-

("Most important to the court's analysis of the first factor is'transformative' nature of the work."); Am. Geophysical Union, 60
F.3d at 923.

Although transformative use is not "absolutely

necessary" to a finding of fair use, "the goal of copyright, topromote science and the arts, is generally furthered by thecreation of transformative works."
B.

Campbell, 510 U.S. at 579.

Application
I discuss each of the four factors separately, and I

then weigh them together.
1.

Purpose and Character of Use
The first factor is "the purpose and character of theuse, including whether such use is of a commercial nature or isfor nonprofit educational purposes."

17 U.S.C. § 107(1).

Google's use of the copyrighted works is highly
transformative.

Google Books digitizes books and transforms

expressive text into a comprehensive word index that helps
readers, scholars, researchers, and others find books.

GoogleBooks has become an important tool for libraries and librarians
and cite-checkers as it helps to identify and find books.

The

use of book text to facilitate search through the display ofsnippets is transformative.

See Perfect 10, Inc. v. Amazon.com,

Inc., 508 F.3d 1146, 1168 (9th Cir. 2007) (holding that use of-19-

works -- "thumbnail images," including copyrighted
photographs -- to facilitate search was "transformative");

Kelly

v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (same); seealso Bill Graham Archives, 448 F.3d at 609-11 (holding that
display of images of posters in 480-page cultural history of theGrateful Dead was transformative, explaining that "[w]hile thesmall size [of the images of the posters] is sufficient to permit
readers to recognize the historial significance of the posters,
it is inadequate to offer more than a glimpse of their expressive
value").

The display of snippets of text for search is similar

to the display of thumbnail images of photographs for search or
small images of concert posters for reference to past events, as
the snippets help users locate books and determine whether they
may be of interest.

Google Books thus uses words for a different

purpose -- it uses snippets of text to act as pointers directing
users to a broad selection of books.
Similarly, Google Books is also transformative in thesense that it has transformed book text into data for purposes ofsubstantive research, including data mining and text mining in
new areas, thereby opening up new fields of research.

Words inbooks are being used in a way they have not been used before.
Google Books has created something new in the use of book-20-

text -- the frequency of words and trends in their usage provide
substantive information.
Google Books does not supersede or supplant books
because it is not a tool to be used to read books.

Instead, it"adds value to the original" and allows for "the creation of new
information, new aesthetics, new insights and understandings."
Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111.
Hence, the use is transformative.
It is true, of course, as plaintiffs argue, that Google
is a for-profit entity and Google Books is largely a commercial
enterprise.

The fact that a use is commercial "tends to weighagainst a finding of fair use."

Harper & Row, 471 U.S. at 562;

accord Campbell, 510 U.S. at 585.

On the other hand, fair use

has been found even where a defendant benefitted commerciallyfrom the unlicensed use of copyrighted works.

See, e.g., Blanch,

467 F.3d at 253; Bill Graham Archives, 448 F.3d at 612.

See also

Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d
132, 142 (2d Cir. 1998) (observing that Second Circuit does "notgive much weight to the fact that the secondary use was forcommercial gain").

Here, Google does not sell the scans it has

made of books for Google Books; it does not sell the snippetsthat it displays; and it does not run ads on the About the Book-21-

pages that contain snippets.

It does not engage in the directcommercialization of copyrighted works.

See 17 U.S.C. § 107(1).

Google does, of course, benefit commercially in the sense thatusers are drawn to the Google websites by the ability to search
Google Books.

While this is a consideration to be acknowledged

in weighing all the factors, even assuming Google's principal
motivation is profit, the fact is that Google Books serves
several important educational purposes.
Accordingly, I conclude that the first factor strongly
favors a finding of fair use.
2.

Nature of Copyrighted Works
The second factor is "the nature of the copyrighted

work."

17 U.S.C. § 107(2).4

Here, the works are books -- alltypes of published books, fiction and non-fiction, in-print andout-of-print.

While works of fiction are entitled to greater

copyright protection, Stewart v. Abend, 495 U.S. 207, 237 (1990),
here the vast majority of the books in Google Books are
non-fiction.

Further, the books at issue are published and4

The parties agree that the second factor plays little
role in the ultimate fair use determination. (Pl. Mem. at 36
n.18 (Doc. No. 1050); Def. Mem. at 25). See On Davis v. Gap,
Inc., 246 F.3d 152, 175 (2d Cir. 2001) ("The second statutory
factor, the nature of the copyrighted work, is rarely found to be
determinative.") (internal citation omitted).
-22-

available to the public.
fair use.

These considerations favor a finding of

See Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1078

(2d Cir. 1992) ("Whether or not a work is published is criticalto its nature under factor two because the scope of fair use isnarrower with respect to unpublished works.") (quoting New Era
Publ'ns Intern., ApS v. Carol Publ’g Grp., 904 F.2d 152, 157 (2dCir. 1990) (internal quotation marks ommitted)).
3.

Amount and Substantiality of Portion Used
The third factor is "the amount and substantiality ofthe portion used in relation to the copyrighted work as a whole."
17 U.S.C. § 107(3).

Google scans the full text of books -- theentire books -- and it copies verbatim expression.

On the other

hand, courts have held that copying the entirety of a work may
still be fair use.

See, e.g., Sony Corp. of Am. v. Universal

City Studios, Inc., 464 U.S. 417, 449-50 (1984); Bill Graham
Archives, 448 F.3d at 613 ("copying the entirety of a work issometimes necessary to make a fair use of the image").

Here, asone of the keys to Google Books is its offering of full-text
search of books, full-work reproduction is critical to thefunctioning of Google Books.

Significantly, Google limits theamount of text it displays in response to a search.

-23-

On balance, I conclude that the third factor weighsslightly against a finding of fair use.
4.

Effect of Use Upon Potential Market or Value
The fourth factor is "the effect of the use upon thepotential market for or value of the copyrighted work."
U.S.C. § 107(4).

17Here, plaintiffs argue that Google Books will

negatively impact the market for books and that Google's scans
will serve as a "market replacement" for books.
41).

(Pl. Mem. at

It also argues that users could put in multiple searches,varying slightly the search terms, to access an entire book.
(9/23/13 Tr. at 6).
Neither suggestion makes sense.

Google does not sell

its scans, and the scans do not replace the books.

While partner

libraries have the ability to download a scan of a book fromtheir collections, they owned the books already -- they provided
the original book to Google to scan.

Nor is it likely thatsomeone would take the time and energy to input countless
searches to try and get enough snippets to comprise an entire
book.

Not only is that not possible as certain pages andsnippets are blacklisted, the individual would have to have a
copy of the book in his possession already to be able to piece
the different snippets together in coherent fashion.
-24-

To the contrary, a reasonable factfinder could only
find that Google Books enhances the sales of books to the benefitof copyright holders.

An important factor in the success of anindividual title is whether it is discovered -- whether potential
readers learn of its existence.
1039)).

(Harris Decl. ¶ 7 (Doc. No.

Google Books provides a way for authors' works to become

noticed, much like traditional in-store book displays.
¶¶ 14-15).

(Id. atIndeed, both librarians and their patrons use Google

Books to identify books to purchase.
American Library Ass'n at 8).

(Br. of Amici Curiae

Many authors have noted thatonline browsing in general and Google Books in particular helps
readers find their work, thus increasing their audiences.
Further, Google provides convenient links to booksellers to makeit easy for a reader to order a book.

In this day and age of

on-line shopping, there can be no doubt but that Google Books
improves books sales.
Hence, I conclude that the fourth factor weighsstrongly in favor of a finding of fair use.
5.

Overall Assessment
Finally, the various non-exclusive statutory factors

are to be weighed together, along with any other relevant
considerations, in light of the purposes of the copyright laws.
-25-

In my view, Google Books provides significant publicbenefits.

It advances the progress of the arts and sciences,while maintaining respectful consideration for the rights ofauthors and other creative individuals, and without adversely
impacting the rights of copyright holders.

It has become aninvaluable 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, toconduct full-text searches of tens of millions of books.

It

preserves books, in particular out-of-print and old books thathave been forgotten in the bowels of libraries, and it gives them
new life.

It facilitates access to books for print-disabled andremote or underserved populations.

It generates new audiences

and creates new sources of income for authors and publishers.
Indeed, all society benefits.
Similarly, Google is entitled to summary judgment withrespect to plaintiffs' claims based on the copies of scannedbooks made available to libraries.

Even assuming plaintiffs havedemonstrated a prima facie case of copyright infringement,
Google's actions constitute fair use here as well.

Googleprovides the libraries with the technological means to makedigital copies of books that they already own.
-26-

The purpose ofthe library copies is to advance the libraries' lawful uses ofthe digitized books consistent with the copyright law.

Thelibraries then use these digital copies in transformative ways.
They create their own full-text searchable indices of books,
maintain copies for purposes of preservation, and make copies
available toprint-disabled individuals, expanding accessfor them in unprecedented ways.

Google's actions in providing

the libraries with the ability to engage in activities that
advance the arts and sciences constitute fair use.
To the extent plaintiffs are asserting a theory of
secondary liability against Google, the theory fails because thelibraries' actions are protected by the fair use doctrine.
Indeed, in the HathiTrust case, Judge Baer held that thelibraries' conduct was fair use.

See Authors Guild, Inc. v.

HathiTrust, 902 F. Supp. 2d 445, 460-61, 464 (S.D.N.Y. 2012) ("Icannot imagine a definition of fair use that would not encompass
the transformative uses made by Defendants' [Mass Digitization
Project] and would require that I terminate this invaluable
contribution to the progress of science and cultivation of thearts that at the same time effectuates the ideals espoused by the[Americans with Disabilities Act].").

-27-

The fair use analysis set

forth above with respect to Google Books applies here as well tothe libraries' use of their scans, and if there is no liability
for copyright infringement on the libraries' part, there can be
no liability on Google's part.
CONCLUSION

For the reasons set forth above, plaintiffs' motion forpartial summary judgment is denied and Google's motion forsummary judgment is granted.

Judgment will be entered in favorof Google dismissing the Complaint.

Google shall submit a

proposed judgment, on notice, within five business days hereof.
SO ORDERED.
Dated:

November 14, 2013
New York, New York

~~a

\.

United States Circuit Judge
Sitting By Designation

28­

APPEARANCESFor Plaintiffs:

BONI & ZACK LLC
By: Michael J. Boni, Esq,
Joshua D. Snyder, Esq.
John E. Sindoni, Esq.
15 St. Asaphs Road
Bala Cynwyd, PA 19004

FRANKFURT KURNIT KLEIN & SELZ P.C.
By: Edward H. Rosenthal, Esq.
Jeremy S. Goldman, Esq.
488 Madison Avenue
New York, NY 10022

MILBERG LLP
By: Sanford P. Dumain, Esq.
1 Pennsylvania PlazaNew York, NY 10119

For Defendant Google, Inc.

DURIE TANGRI LLP
By: Daralyn J. Durie, Esq.
Joseph C. Gratz, Esq.
David McGowan, Esq.
Genevieve P. Rosloff, Esq.
217 Leidesdorff Street
San Francisco, CA 94111-29-

For Amicus Curiae Digital
Humanities and Law Scholars:

SAMUELSON LAW, TECHNOLOGY & PUBLIC POLICY CLINIC
By: Jennifer M. Urban, Esq.
Babak Siavoshy, Esq.
Jason Schultz, Esq.
University of California, Berkeley,
School of Law
396 Simon Hall
Berkeley, CA 94720- and Matthew Sag, Esq.
Loyola University of Chicago School of Law
25 East Pearson Street
Chicago, IL 60611

For Amicus Curiae American Library
Association, Association ofCollege and Research Libraries,
Association of Research Libraries,
and Electronic Frontier Foundation:

JONATHAN BAND PLLC
By: Jonathan Band, Esq.
21 Dupont Circle, NW
Washington, DC 20036-30-