Any time you make use of someone else’s copyrighted material in something you yourself are creating—say a Taylor Swift song in the background of a video of a silly dance you want to upload to YouTube—you have to either get Swift’s permission to use her song or have a good argument that your use of the song snippet is a “fair use.”
Since its inception in the mid-19th century, “fair use” has defined the delicate balance between the ownership rights of creators and the expressive rights of the public, who can use copyrighted material as long as their use is “transformative.” Thanks to two big legal decisions around Google books and a “dancing baby,” the balance has shifted in the last month farther away from rights-holding creators and toward those who want to use what they make.
In last month’s Lenz v. Universal Music decision, a mother won the right to have a Prince song playing in the background of a YouTube video of her children. Presiding judge Richard Tallman wrote that “fair use is not just excused by the law, it is wholly authorized by the law.” And on Friday, a federal appeals court ruled that Google’s book-scanning project is protected by fair use, so the search giant can continue to digitize authors’ works and make snippets from the books available for free online.
Google’s case completely changes the legal landscape say experts, because the search giant just got the right to wholly copy copyrighted work and put entire books onto its servers, as long as the end result—how it serves up that information—is transformative.
“[N]ot only is the copying of the totality of the original reasonably appropriate to Google’s transformative purpose, it is literally necessary to achieve that purpose,” wrote the court in its decision. The Electronic Frontier Foundation called it a “good day for fair use.”
“This is a big shift in thinking,” said Annemarie Bridy, a scholar of technology law and intellectual property at the University of Idaho College of Law. “It’s a completely expanded notion of transformation.”
Almost a decade ago, a group of authors sued Google for its massive effort to scan millions of books to create an online library, arguing that it violated copyright law and robbed them of revenue. Google argued that the project wouldn’t actually ding book sales, but instead increase them, by making it easier for readers to discover new books they might not otherwise see.
What qualifies as fair use is incredibly murky, but there are four factors that come into play, with the most important one in this case being “the amount and ‘substantiality’ of the original content used in the new work.” In Friday’s decision, a unanimous three-judge appeals panel found that while the case “tests the boundaries of fair use,” it was ultimately allowed under the law.
The Google books decision is also important because it definitively spells out what qualifies as “transformative” in the Internet era. Pierre Leval, who wrote the decision for the court, originally spelled out the social impact of transformative use in a 1990 Harvard Law Review Article that formed the basis for legal thinking about transformation in fair use.
“The copyright law embodies a recognition that creative intellectual activity is vital to the well-being of society,” he wrote in 1990. “Excessively broad protection would stifle, rather than advance, the objective.”
In 1990, though, Leval was mainly thinking about things like parody. It’s a more complicated argument to say that something like Google books is transformative, when what Google has done is copy an entire work without changing the content at all. In his decision, Leval explains exactly why this still fits into his philosophy of transformation.
Making texts easily searchable, Leval wrote in his decision, transforms the original works into something else by creating a new use for them and enhancing public knowledge. Furthermore, he writes, it doesn’t threaten the books marketplace because “Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests),” Leval wrote in the decision.
Jonathan Band, an attorney for the Library Copyright Alliance, said that the important distinction here is that fair use doesn’t have to do with what is copied from a work, but rather how it is presented to the public.
Leval writes that the purpose of copyright law is not to guarantee creators a living or to give them exclusive control over their work. In fact fears of the latter happening are part of what led to the establishment of the basic principals of fair use back in 1849.
“While authors are undoubtedly important beneficiaries of copyright,” Leval writes, “the ultimate, primary intended beneficiary is the public.”
The decision, Bridy told me, will ultimately pave the way for more projects like Google Books that use technology to transform original work in ways we could have never imagined a decade ago.
James Grimmelmann, a technology law scholar at University of Maryland School of Law, told me we are especially likely to see more companies doing a version of what Google has done with books—taking massive sets of information and creating new ways to search them.
“This couldn’t have been a more definitive statement that technology can be transformative,” said Grimmelmann. “Unless the Supreme Court eventually finds the same thing, too.”