Tag Archives: fair use

Authors Guild v. Google – another fair use win

Authors Guild v. Google (2d Cir. 2015/10/16) just came out, and it’s another win for fair use: “The Court of Appeals concludes that the defendant’s copying is transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), does not offer the public a meaningful substitute for matter protected by the plaintiffs’ copyrights, and satisfies § 107’s test for fair use.”

Commentaries and Links:

My thoughts while reading through the case. No analysis yet; just reaction.

Full Text Indexes Are Data About Books, and That’s Fair Use

  • I made this point 10 years ago:  Here’s what I wrote ten years ago about full-text as factual information about a work: “The total number of words, the presence of particular words, and the arrangement of those words in a work are, among other things, facts about the work. So are the author, the title, chapter titles, publication date, etc. Creation of an index to a work or multiple works includes gathering facts about the works. Conceptually, it’s quite distinct from the activities the Copyright Act is aimed at: copying and distributing works are clearly aimed at competitive copying, what used to be termed “piracy”.”
  • Compare with these quotes from Leval’s opinion for the Second Circuit:
    • “Even if the search function revealed 100% of the words of the copyrighted book, this would be of little substitutive value if the words were revealed in alphabetical order, or any order other than the order they follow in the original book.”  p.33Sure, a snippet search might reveal the factual answer to a question and eliminate the need for a sale (or a rental). But the facts are not protected by copyright. “Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. ”  (pp. 35-36)  Ooh ooh!  Data mining.
    • “the cumbersome, disjointed, and incomplete nature of the  aggregation of snippets made available through snippet view” — Leval: This phrase is so good I will use it twice! Just for emphasis.  (p.36)
    • “Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright.” – p.35 This is a frank recognition that not all interests that COULD conceivably be covered by some copyright claim are in fact protected by copyright. I really hope this provides helpful support for examining the copyright interests underlying a claim will receive additional critical scrutiny.
  • All the stuff in about metadata & info about books is useful for librarians, scholars.
  • Carrie Russell at ALA made this point clearly:  “In Google Books, Court Finds Creating an Index Is a Fair Use”

Beautiful Language About Copyright’s Purpose

  • “Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.” slip op. p.13 — This isn’t new, but I always like to see the reminder.  Ah, Lord Ellenborough. “In the words of Lord Ellenborough, “[W]hile I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science.” Cary v. Kearsley, 170 Eng. Rep. 679, 681, 4 Esp. 168, 170 (1802).”  Trotting out the hoary old fan favorites!
  • I like this one: “[The crucial question: how to define the boundary limit of the original author’s exclusive rights in order to best serve the overall objectives of the copyright law to expand public learning while protecting the incentives of authors to create for the public good.” p.15

The Master of “Transformativeness” Sets the Record Straight:

Judge Leval wrote the book–well, the article–on transformative uses, which the Supreme Court then cited in Campbell v. Acuff-Rose (the “Pretty Woman” case). This effectively established the transformativeness analysis as a key gloss on fair use. Since then it has swept the courts, and proven indispensable in analyzing all sorts of uses. Judge Leval clarifies some confusions that have arisen:

  • “In other words, transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.” p.17 I suspect this will be requoted:
  • “The word “transformative” cannot be taken too literally as a sufficient key to understanding the elements of fair use. It is rather a suggestive symbol for a complex thought” p.17 … corrective to the literalists who have tried to argue that “transformativeness” means the work itself has to be changed.
  • Helpful gloss on “transformative” versus “derivative works” on pp.18-19: “The statutory definition suggests that derivative works generally involve transformations in the nature of changes of form. 17 U.S.C. § 101. By contrast, copying from an original for the purpose of criticism or commentary on the original or provision of information about it, tends most clearly to satisfy Campbell’s notion of the “transformative” purpose involved in the analysis of Factor One.”
  • More substance in fn 18’s discussion of transformativeness and “complementarity” than in all of Kienitz v. Sconnie Nation. “We do not find the term “complementary” particularly helpful in explaining fair use. The term would encompass changes of form that are generally understood to produce derivative works, rather than fair uses, and, at the same time, would fail to encompass copying for purposes that are generally and properly viewed as creating fair uses. “
  • “We have no difficulty concluding that Google’s making of a digital copy of Plaintiffs’ books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell. Our court’s exemplary discussion in HathiTrust informs our ruling. ”  p.21  No difficulty!  Exemplary!  “We have no doubt that the purpose of this copying is the sort of transformative purpose described in Campbell as strongly favoring satisfaction of the first factor.” p.22 It’s hard to see p.21 and 22, with its string cite that “We cited …” in HathiTrust, as anything other than a seriously smackdown of the Authors Guild.

Addressing the Factors:

 

The Authors Guild suggests the Second Circuit ignores the fourth factor. Not so:

  • Leval addresses the idea that commercial uses should presumptively be unfair based on earlier Supreme Court law (Sony):, noting that later Supreme Court jurisprudence “reversed on this very point”: “If that [Sony] were the extent of precedential authority on the relevance of commercial motivation, Plaintiffs’ arguments would muster impressive support.”  Ouch.  “However, while the commercial motivation of the secondary use can undoubtedly weigh against a finding of fair use in some circumstances, the Supreme Court, our court, and others have eventually recognized that the Sony dictum was enormously overstated.” Oh yeah. (p.24) … And then the discussion begins, starting with “The Supreme Court reversed on this very point” in Campbell.
  • It is not the role of the fourth factor to eliminate any possibility of a lost sale.  “But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). ” p.35 (emphasis added)
  • Reminder: Not all interests are protected by copyright. The factual content is not protected by content. “Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright.” – p.35 I really hope this provides helpful support for examining the copyright interests underlying a claim will receive additional critical scrutiny.
  • Sure, a snippet search might reveal the factual answer to a question and eliminate the need for a sale (or a rental). But the facts are not protected by copyright. “Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. ”  (pp. 35-36) Data mining is protected.

Derivative Works (infringing) Versus Transformative Uses (fair)

  • “Plaintiffs next contend that, under Section 106(2), they have a derivative right in the application of search and snippet view functions to their works, and that Google has usurped their exclusive market for such derivatives. There is no merit to this argument.” (p.37, emphasis added).
  • “The extension of copyright protection beyond the copying of the work in its original form to cover also the copying of a derivative reflects a clear and logical policy choice.” p.37 – Nicely done reminder that it’s not each and every creation of something “derived from” a work.
  • The exemplary list of derivative works in 17 USC 101 “strongly implies that derivative works … ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.”  Leval, credited with reshaping fair use law through the “transformativeness” inquiry, here takes on one of the significant critiques / confusions: What’s the difference between a transformative fair use, and an infringing derivative work?

The Guild’s “Digital Risk” Argument? Not so persuasive.

  • Judge Leval is not warmly disposed toward the plaintiffs’ “sheer speculation” about “mere speculative possibilities” that libraries might misuse their copies. Thanks, Judge Leval!  Anyone who knows librarians knows we are the furthest from “nefarious” one could imagine.

Pretty much none of the Guild’s arguments were persuasive, actually. Judge Leval is Not Impressed.

Ten months did not improve Judge Leval’s impression of the Guild’s arguments. He was openly skeptical in oral argument of many of their points, and is not exactly using his nice voice to dismiss various arguments put forward by plaintiffs:

  • “We have no difficulty concluding …” (p.21)
  • “If that were the extent of precedential authority on the relevance of commercial motivation, Plaintiffs’ arguments would muster impressive support.” (p.24)
  • “There is no merit to this argument.” (p.37)
  • “Unlike the Plaintiffs’ argument just considered based on a supposed derivative right to supply information about their books, this claim has a reasonable theoretical basis.” (p.41)
  • “Plaintiff’s effort to [rebut Google’s security showings] falls far short.” (p.43)
  • “The claim fails” (p.44)
  • “We have considered Plaintiffs’ other contentions not directly addressed in this opinion and find them without merit. ” (fn 27, p.46)
  • Appendix B

 

Various Thoughts About the Opinion (While Reading)

  • Most detailed description I have yet seen (outside of technical documents) of the snippets. I wonder how much time the judges and clerks spent poking around in Google Books. I bet, a lot!
  • Cats! Everything is better with cats.  “Snippet view adds important value to the basic transformative search function, which tells only whether and how often the searched term appears in the book. Merely knowing that a term of interest appears in a book does not necessarily tell the searcher whether she needs to obtain the book, because it does not reveal whether the term is discussed in a manner or context falling within the scope of the searcher’s interest. For example, a searcher seeking books that explore Einstein’s theories, who finds that a particular book includes 39 usages of “Einstein,” will nonetheless conclude she can skip that book if the snippets reveal that the book speaks of “Einstein” because that is the name of the author’s cat.” p.23
  • Presumption of unfairness for commercial uses, relying on Sony?  IF … then yeah, impressive.  But NOT.  “If that were the extent of precedential authority on the relevance of commercial motivation, Plaintiffs’ arguments would muster impressive support.”  Ouch.  “However, while the commercial motivation of the secondary use can undoubtedly weigh against a finding of fair use in some circumstances, the Supreme Court, our court, and others have eventually recognized that the Sony dictum was enormously overstated.” Oh yeah. (p.24) … And then the discussion begins, starting with “The Supreme Court reversed on this very point” in Campbell.
  • Leval issues a little dicta of his own in fn 20. Maybe for the published version they’ll strip the last two sentences, which are actually assertions of opinions masquerading as facts; facts that were not adequately briefed in this case.
  • Really appreciated the use of the generic female in .
  • “Even if the search function revealed 100% of the words of the copyrighted book, this would be of little substitutive value if the words were revealed in alphabetical order, or any order other than the order they follow in the original book.”  p.33
  • “But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). ” p.35
  • Frank recognition that not all interests that COULD conceivably be covered by some copyright claim are in fact protected by copyright: “Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright.” – p.35 I really hope this provides helpful support for examining the copyright interests underlying a claim will receive additional critical scrutiny.
  • Sure, a snippet search might reveal the factual answer to a question and eliminate the need for a sale (or a rental). But the facts are not protected by copyright. “Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. ”  (pp. 35-36)  Ooh ooh!  Data mining.
  • “the cumbersome, disjointed, and incomplete nature of the  aggregation of snippets made available through snippet view” — Leval: This phrase is so good I will use it twice! Just for emphasis.  (p.36)

copying to learn : Fair use makes it possible

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Each composite work has a small copy of Jacob Lawrence’s work for comparison. The exhibition also includes background curricular information, and information about Jacob Lawrence and his works. And yes, this image is kind of blurry. My phone camera is not the best. Actually it’s probably just that I’m a terrible photographer.

My kid’s elementary school has an amazing arts program, and they routinely display kids’ artwork all over the school. I was admiring a new African-American history themed exhibition, and appreciating how fair use makes this possible — likely, without any consideration of copyright or fair use by the instructors or administrators, and certainly without any by the children (with the possible exception of my child).

The recent exhibit featured re-creations of “the art of Jacob Lawrence, who tells stories about the history of African-Americans in his paintings.” This is part of the integrated arts curriculum in Amherst public schools, where the arts instruction is integrated into reading, social studies, science, etc. So the arts component of this involved the kids “look[ing] at pictures from [Lawrence’s] ‘Great Migration series’, which tells the story of the movement of many African-Americans from the south to the north at the beginning of the 20th century.”

After studying paintings, “[e]ach class worked on creating a replica of one painting from the series. Each student got a little piece of a painting and had the challenge of enlarging the shapes and recreating the colors. Then we put each of the pieces together like a puzzle.”

There were quite a few of these scattered through the building; I posted a couple of pictures below.

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These paintings are among the best-known works of Jacob Lawrence, 1917-2000, drawn from the Migration Series, completed in 1940.  The works are managed by the Jacob and Gwen Knight Foundation, which handles permission requests, and through the Artists Rights Society.

You don’t have to ask permission, because fair use.

But our arts teacher didn’t need to know about all this, and didn’t need to contact them, because the work is so obviously fair use.  These children’s recreations are done in a nonprofit educational setting, and although they are recreating the works, they are doing so in a highly transformative way — closely examining individual components and recreating the components, then re-assembling to create a new work that looks something like a photomosaic.  The original works were highly creative, but the level of transformativeness here means that second factor is less significant.  The amount taken by each student was small, although the project as conceived of by the teacher is to take the whole of each work.  But the whole of the layout and color scheme — and nothing of the actual brush strokes, the actual colors.  And lastly, one can’t imagine that this use substitutes for any real or likely marketed use of the original — licensing to elementary schools to study art.

You don’t have to know fair use to use it.

Projects like this one happen in art classes, music classes, writing classes, all the time, from preschool rooms to postgraduate and professional work.  (Preschool and elementary programs around here are fond of the colorful work of local celebrity children’s artist Eric Carle.  In fact, the Eric Carle Museum of Picture Book Art has itself run arts activities of this sort, using Carle’s work as a touchstone.)

These kinds of projects happen all the time because copying is an integral part of how we learn, maybe THE most important part of how we learn.  And they happen smoothly and beautifully, without asking for permission from copyright holders, and without some  micropayment scheme monitoring and monetizing our every use of works.  They happen so beautifully, easily, and intuitively, without transaction costs or surveillance or angst or paperwork — because of fair use.

And not because everyone had to know about fair use, and think about quantities and the four factors and so on.  But because fair use is, at its core, a doctrine based on gut instincts, on what’s fair.  So it can operate in the background, because that basic sense of fairness and unfairness is everyone’s guide:  Is my use being unfair to the creator?   The answer is so obvious most of the time that people don’t have to think further.  Because the doctrine embodying a core limitation on copyright is based simply on what’s “fair”.

IMG_20150323_085850

I like that. People shouldn’t have to become copyright and fair use experts to just run their lives.   Even though copyright is ubiquitous (all of your cell phone photos, all of your emails, all of your doodles — all are copyrighted until 70 years after your death!), people are mostly able to operate without becoming experts, because of fair use*.

Who does need to know about fair use? Congress.

There are times and places, however, when I want the background benefits of fair use to be employed knowingly.  The public interest copyright crowd was buzzing amusedly the last few days over a House Judiciary Committee’s animated GIF press release, ranting about immigration (trigger warning: Republicans ranting about immigration policy may send sensitive or sensible souls into apoplexy).  Press pick-ups on this story included things like this article for ZDNet by David Gewirtz, which headlined the “copyright-violating animated GIFs.”  (The ZDNet story, like this one, is actually celebrating fair use, while calling attention to the irony of its use by SOPA-proponents and the House Judiciary Committee.)

I’m happy they get to rely on fair use without knowing it, because we all can and should.  But I hope someone, somewhere, was able to use this as a teaching moment to help them really GET why fair use is so important.  Think of the children.

 

 

——————

* Fair use, and the de minimis doctrine, and other core copyright and general law doctrines that embody common sense.

Thanks to posts by Sharon Farb @ UCLA and Sherwin Siy @ Public Knowledge for alerting me to the House Judiciary immigration post originally.

fair use quiz : paraphrasing a famous quote

For Fair Use Week, I offered a small “fair use” quiz to colleagues. I listed a dozen or so different scenarios, taken from famous or recently-well-publicized fair use cases, and made a simple paraphrase of the case, with a “fair use” or “license it” choice. At the end of the survey (which was anonymous), I posted the note: “Surprise! All of these uses were found to be fair use by US courts,” and gave a brief citation to each case. (Plus, the usual lawyerly cautionary note that these were not enough facts to really assess the fairness of the use, but that at the least, I wanted folks to know that these facts could give rise to a finding of fair use.)

The poll was never intended to collect data in any reliable way — I drafted it in about half an hour, phrased things in ways that were sometimes intended to be counter-intuitive or provocative, and of course left out much nuance. I intended it as a consciousness-raising exercise, and hope it was useful in that regard: Recognizing how broad fair use can actually be.

It turns out to have also been useful to me, in giving me a bit of a copyright agenda. So, I thought I’d start by talking about each of these cases in context. I’ll do one blog post for each “hypothetical”.

Paraphrasing a famous quote from a novelist, in a commercially released film. Almost a quarter of respondents thought this should be licensed. The Faulkner estate agreed, actually, and sued Sony Pictures for the paraphrase of William Faulkner’s quote in Woody Allen’s “Midnight in Paris”.  The District Court disagreed, holding Sony’s use to be a fair use in July 2013.  Faulkner Literary Rights, LLC v. Sony Pictures Classics, Inc., et al (N.D. Miss. July 18, 2013).  (Eriq Gardner for the Hollywood Reporter covered the case, and gives a fair write-up.)

The Quotes

The quote in the movie (“Midnight in Paris”) goes like this:

“The past is not dead! Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him, too. I ran into him at a dinner party.”

And the original quote, in Faulkner’s Requiem for a Nun, is certainly one of Faulkner’s more memorable quotes:

“The past is never dead.  It’s not even past.”

Reasonable People Can Disagree About Fair Use

This brings up my first point, which is that reasonable people can disagree about fair use. While I think this was a pretty obvious fair use case, I don’t think the William Faulkner people were completely crazy, or arguing in bad faith, to make their argument. I imagine that the thinking, on the part of both the Faulkner estate and 24% of my colleagues, was that, “Sony Pictures is making a highly commercial use, and the Faulkner Estate would have been happy to license this use.  So that’s the two most important fair use factors, and the second factor — the nature of the copyrighted work — also favors Faulkner.”

But Judge Mills of the Northern District Court of Mississippi held otherwise, and not because he was a fan of Woody Allen, either.  (Judges and lawyers like to drop snide comments into footnotes, which I find highly amusing.  Here, Judge Mills dropped a footnote on the title, “Requiem for a Nun,” in which he responded to Sony’s characterization of the Faulkner work:

The court disagrees with Sony’s characterization of Requiem as being “relatively obscure.”  Nothing in the Yoknapatawpha canon is obscure.  Having viewed the two works at issue in this case, the court is convinced that one is timeless, the other temporal.

I would not go so far as to say that William Faulkner is deified in the South, but it was perhaps not Sony’s best decision to minimize one of Mississippi’s favorite sons, to a court in Mississippi.)

The Court gave short shrift to the de minimis doctrine, which I think was a lost opportunity to make a nice decision out of the most obvious call, but instead considered the de minimis issue within the context of fair use.  Ultimately the Court held that “Sony’s use in this matter was de minimis“. (slip op. p.15)

Factor One – Purpose and Character of the Use, and Factor Three, too

In considering the first factor, the Court quotes the Supreme Court’s Campbell case, discussing the Constitutional purposes of the factor, which contextualize the entire analysis:

“The central purpose of this investigation is to see… whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative. …

The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

Campbell, 510 US 569, 578 (1994).  Campbell is the important case in which the Supreme Court effectively ratified the use of “transformativeness” in an analysis. Virtually all fair use cases of this nature will cite to Campbell at some point, and any case involving with two different creative works will have to grapple with it.  The Court contrasts the “speaker, time, place, and purpose of the quote” in the two works, finding them “diametrically dissimilar” and “highly distinguishable.”  (slip op., pp.8-9).  Because the quotes are used in such different ways, the new use “undoubtedly” transformed the work.

The Court also thought the shift in medium from novel to a comedy film added to the transformativeness; I’m unconvinced by this particular analysis, but it’s important to note.

Having contrasted the way the quotes were used, the Court holds, “These factors coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use.”  (slip op. p.9)  The case was won right there, with the Court finding the transformativeness and small amount taken to be so significant.  But the Court goes on to note, “It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film.  Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.”  (slip op. p.9)

The Court is sliding into the analysis of the third factor — the amount and substantiality taken — but these two factors are inextricably related to each other.  It’s not just whether each factor goes one way or the other — the analysis is about how the factors relate to each other.  Is the amount taken too much, in light of the purpose and character of the use?  Or is it a reasonable amount?

Factor Two – Nature of the Original Work

The Court found the nature of the work to be “neutral”.  That seems on its face to be bizarre — surely the Faulkner work is entitled to the strongest protections accorded to a highly creative work?  Yes, but in a transformative use, this factor is much less important.  Analytically, it’s a bit muddled to say that the factor is neutral rather than simply noting that it’s not very important; but the outcome is the same.  This factor doesn’t really hurt Sony, and doesn’t help Faulkner — why?  Again because of the first factor: The purpose and character of the use were highly transformative.

Factor Three – Amount Taken

The analysis here was quite interesting.  The focus is usually on the “amount” taken, and sometimes courts consider the “substantiality”, as in the “heart of the work” doctrine.  Even if a small “amount” was taken, was it the “heart of the work”, as it was in Time v. Nation, the Gerald Ford memoir case?

Here, the Court captioned this section “Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole.”  Having already addressed the “amount” in its factor three discussion (a 9-word quote), the Court focuses this discussion almost entirely on the “substantiality” part of the analysis.  Engaging in a bit of literary analysis, the Court considers whether Faulkner’s quote, which captures a theme on display throughout the novel, is “qualitative[ly] importan[t]” to the originating work as a whole.  Noting the numerous times the theme was reiterated, the Court found here that the quote was merely a “fragment of the idea’s expression,” (slip op. p.11) after reminding us that the idea itself was not protectable under copyright.

Factor Four – Effect on Market

We know early on in the discussion of this factor that “the court considers this factor to be essentially a non-issue in light of the stark balance of the first factors weighing in favor of Sony as well as further considerations that follow.” (slip op. p.12)

But the Court goes on to note, with incredulity, that the market for Faulkner’s work could not reasonably be harmed by this use, and may have been assisted by the “homage” (slip op. p.13):

The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.

But those who thought Faulkner’s estate entitled to licensing revenues were certainly not seriously considering that Faulkner’s market for the novel was harmed by this use.  Rather, they were considering the lost licensing revenue.

The reasoning here goes like this.  “B is making a use of A’s work.  A is willing to charge for that use, so B cannot claim fair use, because B could simply have paid A and gotten permission.”  This reasoning bedevils fair use, in part because it seems so easy.  Why not get permission, if you can?

Here’s why.  Fair use cannot be available only if permission is denied.  The asking of permission is its own harm to society in many cases, because it increases transaction costs for uses that simply are — fair.  The social harms that could also flow from, for instance, requiring people to ask permission before including quotes in a critical review, would also be substantial.

There are numerous specific cases in which it would also simply be infeasible to ask for permission first.  Rightsholders don’t exist or can’t be identified; time is of the essence; rightsholders are too numerous to reasonably reach out to them all; the rightsholder always says no; the rightsholder bears a grudge; it would infringe other important rights, such as privacy rights of students, to ask; and so on.

And finally, allowing “permission could be received and fair use only exists if there is no permission available” would basically allow the fourth factor analysis to swallow all the other factors.  For a few years, some courts wrote opinions that way; but since the mid-90s, courts have increasingly turned back to the holistic analysis, interpreting all four factors in light of the first factor.

This court does not go into great detail about these potential social costs, or the problems with the circularity of the lost licensing revenue argument.  Instead, the Court says, of the possibility of lost licensing revenue:

The court is doubtful that any discovery to this effect will prove fruitful since the court does not consider a copyright holder to be entitled to licensing fees for fair use of his or her work.

Other Claims

The Court then makes short work of a trademark claim (no possibility of confusion, and if there were, Sony has a First Amendment defense), and a commercial misappropriation claim (the Court refused to address it because all federal law claims had been addressed).

And that’s it — this case wasn’t a hard one for the Court, and paraphrasing a famous quote — with attribution! — was fair use.  Even in a commercial work.  Even if licensing revenue was potentially lost.

 

PDF of decision: Faulkner-v-Sony-NDMiss-2013

 

Next time I’ll take on a different fair use “hypothetical”, “ripped from the headlines,” as my first year Contracts professor Bob Berring used to say.

Fair Use Week – How Parodies Transformed Fair Use

It’s Fair Use Week! (see more posts! … #FairUseWeek)

For this week, I’ll be posting some comments highlighting cases and trends in fair use.

For my first post I thought I would look at parodies, and their role in transforming fair use law itself. Today we think of parodies as practically a paradigmatic fair use, but they haven’t always been viewed so positively.  The history has been rather mixed — judges’ sensitivities towards the lewdness and disrespect within parodies has sometimes trumped their appreciation for the political or social commentary of the parody. Call me a legal realist, but sometimes that distaste disfigured the court’s approaches to fair use.

Consider these earlier negative approaches to parodies.

In Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d by an equally divided Supreme Court, 356 U.S. 43, the 9th Circuit considered Jack Benny’s parody of a popular play, “Gas Light” — which was so popular that the phrase “gas light” came to represent actions like those of the villainous protagonist, who attempted to drive his wife insane.  The court, discussing the “so-called doctrine of fair use”, summarily held that presenting “a serious dramatic work … with actors walking on their hands or with other grotesqueries” was not a fair use.  Too much of the original was used, and the Court seemed critical of the “grotesqueries”, giving little weight to any commentary they added.

In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), the defendants created a comic book, “Air Pirates Funnies”, which depicted various Disney characters fraternizing in a manner that Disney Corp. felt to be un-Disney-like.  (But where do Huey, Dewey, and Louie come from?  And what else could explain Goofy but drugs?)  Disney sued for copyright and trademark infringement, and the court, in an important “character copyright” case, found that the Disney characters were copyrighted.  The court deemed that because the parody focused on the characters’ “personalities, their wholesomeness and their innocence”, the use was not fair use, because it took more of the graphics than was necessary.  It’s hard for me to believe this decision would go the same way today.

And 20 years later, in Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996), aff’d, 109 F.3d 1394 (9th Cir. 1997), the 9th Circuit again weighed against parody, holding that Dr. Seuss’s copyrighted expression (rhyming schemes, and iconic “hat”, for example) was taken by the authors of “The Cat Not in the Hat”, which told the story of the O. J. Simpson allegations and trial in a Seussian style.  The Court determined that the authors were targeting O. J. Simpson, and just using Dr. Seuss — not targeting his art directly — and so infringed Dr. Seuss’s copyright. The reverence for Dr. Seuss is evident here, too, and it’s hard to escape the conclusion that the court’s analysis was tainted by personal disapprobation of the parodist.

But certainly it wasn’t all doom and gloom for parodies.  Many courts did deem parodies to be fair uses — for instance, Berlin v. EC Publications, Inc., 329 F.2d 541 (2d Cir. 1941), which found fair use for a collection of Mad Magazine parody lyrics “to be sung to the tone of” various popular songs; and Elmsmere Music, Inc. v. National Broadcasting Company, 623 F.2d 252 (2d Cir. 1980), in which Saturday Night Live portrayed the town fathers of the Biblical town of Sodom singing “I Love Sodom” to the tune of “I Love New York”.  The Elmsmere court affirmed, noting that, “in today’s world of unrelieved solemnity, copyright law should be hospitable to the humor of parody.”  In yet another music parody case, Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), the 9th Circuit deemed that “When Sonny Sniffs Glue”, a parody of “When Sonny Gets Blue” was a fair use; the parody only took enough to conjure up the original.

So between the cases that were hospitable toward humor, and the others that took a rather dour and critical approach to parody, the general state of the law on parodies was uncertain to say the least.  Numerous questions abounded for the anxious parodist.  Could commercial parodies be considered fair use?  How much could be taken?  How significant was the difference between “parody” (a work targeting another work) and “satire” (a work targeting society more generally)? Did incorporating lewdness into a work make it more, or less, likely to be found fair use?

There were no easy answers, and the regular back-and-forth in the courts on parodies eventually wound up in the Supreme Court, which in 1993 granted certiorari on the Campbell v. Acuff-Rose case, to determine whether a “commercial parody could be a fair use.”   In Campbell, the members of 2 Live Crew were accused of copyright infringement for its parody of Roy Orbison’s “Pretty Woman.”  2 Live Crew (Luther Campbell) argued that their work was a parody of the original, and thus protected as a fair use .  Acuff-Rose (Roy Orbison’s record label) argued that because 2 Live Crew’s version was commercial, it could not be a fair use; the 9th Circuit agreed with Acuff-Rose, finding copyright infringement.

The US Supreme Court granted cert. in 1993, and held oral arguments in late 1993.  (You can listen to the oral arguments at Oyez, a wonderful site dedicated to Supreme Court jurisprudence.  The shift in style of oral argument in 20 years is marked.)  In March 1994, the Supreme Court issued its opinion, which unanimously reversed the harmful presumption that commercial uses could not be fair.

But it did a lot more than that, and in what seemed at first to be a fairly modest and unassuming way (characteristic of its author, Justice David Souter).  In its unanimous opinion, the Court cited to a number of experts on copyright, including Judge Pierre Leval’s 1990 article, “Toward a Fair Use Standard”, 103 Harvard Law Review 1105 (1990).  The passage bears repeating:

The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 107(1). This factor draws on Justice Story’s formulation, “the nature and objects of the selections made.” Folsom v. Marsh, 9 F.Cas., at 348. The enquiry here may be guided by the examples given in the preamble to 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see 107. The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. [internal citations omitted]

This simple citation to Leval on “transformativeness” has arguably transformed copyright law.  Leval’s article was well-reasoned and well-regarded — you should read it, if you haven’t.  In puzzling through his own fair use cases, Leval crystallized much earlier fair use jurisprudence on productive uses under the rubric of “transformativeness”, arguing persuasively that transformative uses fulfill the Constitutional purposes of copyright, and should thus be favored.   The U.S. Supreme Court, citing to Leval here and in several other places throughout Campbell, effectively ratified the “transformativeness” approach.

The transformativeness approach has created solid ground for numerous productive uses, including search indexes (Kelly v. Arriba; Perfect 10 v. Amazon.com; Perfect 10 v. Google; Authors Guild v. HathiTrust; Authors Guild v. Google); uses of works for historic recontextualizations (Bill Graham Archives v. Dorling Kindersley; SOFA Entertainment v. Dodger Productions); uses of works in databases to detect plagiarism (A.V. v. iParadigm); appropriation art (Prince v. Cariou; Morris v. Young) — and that’s just a few topics off the top of my head.

“Transformativeness” has been criticized recently, by copyright holders and even by the Seventh Circuit (Kienitz v. Sconnie Nation).  But in some sense, the criticisms are less about whether the doctrine is correct or not, and more a complaint that the concept has been too successful.  In fact, the reason that the “transformativeness” analysis has become so influential is because it so successfully captured the essence of what courts must do in a fair use analysis:  Assess and support the underlying purposes of copyright law, to “promote the Progress of Science and useful Arts.”

So, at the beginning of Fair Use Week 2015, a toast to Judge Leval, Luther Campbell and the 2 Live Crew crew, and Justice David Souter, for transforming fair use, and helping to “promote the Progress”.

Cambridge University Press v. Patton (11th Cir. Oct. 17, 2014) – initial thoughts

The GSU decision is out — here’s a link to the PDF.

Don’t panic!  It’s a reversal on fair use, but if you read more deeply, it’s actually pretty good.  My notes (written for my library director and colleagues, on a first quick read, not yet edited) are below.  I am posting them anyway, in lieu of writing something more formal, because, frankly, I’m not going to have time to write up anything more formal for a few days — still prepping for Open Access Week!

(I’ve moved the “Further Reading” links to the bottom, since they were getting rather lengthy.)

————————–

GSU *looks* to have lost on appeal, because aspects of the fair use holding were reversed, and so the attorney’s fees award was reversed.  But if you read a little more deeply, you see that

   (1) all the big pro-GSU decisions in the fair use analysis that the lower court made were affirmed, actually or in substance; and
(2) the ways that the court corrected the district court will not, on balance, do much to harm educators, and in one respect may be very helpful.

First factor (“purpose and character of the use”)
– Like the lower court, the 11th Circuit said ereserves was not transformative.
– Like the lower court, the 11th Circuit (majority) said that nonprofit educational use was tilted toward fair use.  This is great, I think.  I’m very very happy about this.

Second factor (“nature of the work”) 
– The Court reversed the lower court on the 2nd factor, saying that the lower court was wrong to presume that nonfictional works tend more towards fair use. But then they said that this factor wasn’t very important in this case.
– They talked about distinguishing between analysis and data, which I think is an unfortunate direction, but I have trouble seeing how it will make much of a difference in the near term to ereserves/courseware uses — especially given the emphasis on how unimportant this factor is.

Third factor (“amount and substantiality taken”) 
– The Court said that the lower court was in error in establishing a fixed analysis — 10% or 1 chapter.  That’s great, actually, because that was a troubling part of the lower court’s analysis.  Moreover, this was good because the 11th Circuit said the lower court can’t just do it arithmetically, but has to actually look at the specific amount, the substantiality, and look at it individually for each use.  The publishers definitely don’t want this — as soon as it gets into the details, and the facts of how works are used in the classroom, it starts to look better for faculty.  And this is something that we can really help faculty with.
Needless to say, this sort of arithmetic formula is what’s included in the classroom guidelines, which is what the publishers wanted.  So another win for us.

Fourth factor (“effect on the market”) 
– The Court said the lower court got some things wrong here on a technical basis but basically did the analysis right in the end.  In other words, the lower court gave a pass to GSU if there was no available license, and the 11th Circuit said that was the right approach.
– There was discussion about the burden of proof here.  The publishers argued that by being forced to show they did or did not have licensing available, that was an unfair burden of proof; the 11th Circuit said it was fine, because the publishers are the only ones with that information, and the overall burden on this factor & fair use defense as a whole is still with the alleged infringer.  (If plaintiff shows they had made licenses available, then defendant has to show why their use wasn’t a harm to the market.)  That’s what CCC wants, of course, but that’s not news to anybody, and doesn’t change anybody’s behavior.
– The court even went out of its way to note that the mere existence of a license, or failure to get a license, doesn’t end the inquiry.  I think that’s helpful.

Other points: 
The 11th Circuit also found error in the lower court’s “mechanical” assessment of the factors, weighting each of them the same, and this was part of the reversible error.  But then they basically ratified the lower court’s analysis of 1 and 4; said the court got it wrong on 2 but that is not important; and on 3 said look at each one individually.  That does not help the publishers, who wanted a critique of the entire ereserves / course software program.  The “concurrence” makes this clear when they complain about the majority’s decision.

The 11th Circuit also found that the lower court’s consideration of various extra factors was wrong — but only because those extra factors could have fit into the four factor analysis.

The 11th Circuit did not reverse the holding that the proper calculation here was the entire work including index, table of contents, etc., rather than individual chapters of the work.  For procedural reasons, sure, but a win is a win.

The majority also spurned both the classroom guidelines and the coursepack cases as NOT decisive (and noted that the coursepack cases aren’t binding in the 11th Circuit, which was a nice reminder), which is huge.  Again, not what the publishers wanted, and the concurring opinion (which reads more like a dissent) was not happy about this.  The Court also went out of its way to note that if the classroom guidelines were applicable, the numerical limits establish floors not ceilings.

To me, reading (skimming) the concurrence brought this into focus: The concurrence really read as a dissent.  Why?  Because notwithstanding the form of the opinion (reversed on fair use), on the big decisions, GSU (well, educational uses) won, and the concurrence was not happy about that.

So, I am pretty darn happy.  I really thought this could have gone way south, and it didn’t, and in fact the 11th Circuit cleared up a couple of things that I wasn’t happy with (the mechanical weighting of the factors, and the objective  10% / 1 chapter rule).  The outcome is a remand to reconsider the evidence in light of the new test.  What does that mean?

If this actually gets back to the lower court, then the lower court will have to make a nod to the nature of the work in her analysis, looking more closely at what each type of work is.  Same with amount taken.  Both of these will necessarily involve closer examination of the way the work was used, because the 11th Circuit made it clear that they want close analysis of each alleged infringement, and of each factor.

This is not what the publishers want.  GSU doesn’t either, of course, nobody does, but the publishers brought this suit because they wanted clear decisions that established mandatory licensing, or ratified the classroom guidelines, or defined ereserves / courseware as copyshop cases.   In short, they wanted to kill ereserves / courseware.  They didn’t get this, and instead they got a decision that said

  • (1) classroom guidelines & copyshop cases don’t control;
  • (2) nonprofit educational use is a win on the first factor even if non-transformative;
  • (3) no we’re not going to give you a fixed percentage; and
  • (4) if you don’t license it you can’t really complain.

They got a chump change win on nature of the work.  At this point, they’re litigating over a small number of individual uses, but they can’t win what they want to win.

So, I bet this will settle.  The publishers will claim victory, but they’ve lost, because they lost all their big arguments, and this decision does not kill ereserves or courseware use of content — or require that all such uses be licensed by CCC — which is what they wanted.  Instead, it strongly affirms that educational uses are a big plus on the fair use factor.  If there are available licenses for specific content (rarely available for monographs) then that can change things — but then, we already knew that.

So, like I said, we dodged a bullet.  This could have gone so badly, and in my read, I’m pretty happy.

Laura

Further reading: 

SDNY

11th Circuit

Responses from plaintiffs and their funders:

HathiTrust Wins on Appeal

Scholarly Communication Advisory

Thursday, June 12, 2014

link to 2d Circuit opinion by J. Parker

I imagine you’ve read some of the many excellent comments, analyses, and news reports about the Authors Guild v. HathiTrust case.  I thought I’d summarize briefly for you if you’ve missed some of it, and also try to clear up one confusion that I’ve seen several times.  If you want the “brief” highlights, just read below through the first paragraph of the “Section 108 replacement copies” section.  Below that I have various thoughts about the case and what it means, and additional links to commentary. 

Briefly, the Second Circuit yesterday [Tuesday June 10] handed HathiTrust a very significant victory.  The Authors Guild can now petition for a rehearing or petition for cert. to the Supreme Court, and while the Authors Guild has proven somewhat unpredictable, I feel fairly confident in saying that there is no reason for either the Second Circuit or the Supreme Court to review yesterday’s decision.

The lower court had in October 2012 made five major holdings – two procedural, and three substantive, and all five had benefited HathiTrust.  The Second Circuit strongly affirmed four of five of them, and on the fifth, vacated the earlier holding, but not because it was in error but because they thought the plaintiffs would lose on other, more preliminary, grounds.

Associational standing. One, the lower court had held that the Authors Guild and two of the other associational plaintiffs lacked statutory standing to sue.  The Second Circuit affirmed that holding.

“Orphan Works” project not ripe.  Two, the lower court had held that the “orphan works” program wasn’t “ripe”, since HathiTrust had shut it down.  The Second Circuit affirmed that holding.

Searching is fair. Three, the lower court had held that the search and index use of the HathiTrust catalog was a fair use.  The Second Circuit affirmed that holding, finding that a search index is a “quintessentially transformative use”, and that “this use is a fair use.”  That should put to rest arguments that the Second Circuit, the “copyright circuit”, does not recognize the “transformative purpose” approach that the 9th Circuit and 4th Circuits have applied in search engine cases.

Accessible copies are fair. Four, the lower court had held that the provision of copies to print-disabled was a fair use.  The Second Circuit affirmed that holding, although it used different reasoning than the lower court.  “[F]air use allows the Libraries to provide full digital access to copyrighted works to their print-disabled patrons.”  

The lower court had concluded the disability copies were transformative; the Second Circuit said no, the copies are not transformative because they are being used for the same purpose — reading by someone.  Again, the Second Circuit is solidifying that it has the same broad view of “purpose” that other circuits now share.  But this is also a useful opinion because the Second Circuit is expressly holding that NON-transformative uses can be fair use.  This is important for libraries and educational uses, where our purposes are not always transformative (provision of copies on electronic reserves, for instance).

Section 108 replacement copies may not be challengeable on other grounds. Five, the lower court had held that HathiTrust could provide Section 108-authorized “replacement copies” to member Libraries who owned the book, but whose copy was lost, missing, damaged, etc., and when a copy was not commercially available.  Those standards come from Section 108.  The lower court had held that this was a fair use, although not a “transformative use”.

The Second Circuit remanded to see whether or not any plaintiffs actually have standing to sue on this issue.

     I highlight this holding because I’ve seen it mischaracterized as “remanded to see if there is fair use”, or “overturning fair use”, etc.   None of that is correct.  There are three paragraphs discussing this holding — much less than any of the other holdings — because the Court basically said that, “[W]e do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication.”  If the case doesn’t settle the lower court will be seeking to see if any of the remaining plaintiffs might have standing.  In other words, will the named authors and/or the foreign collecting societies have works that are commercially unavailable, and subject to replacement copies?   If they do find standing, then the lower court couldstill find this to be a fair use.  In other words, that holding was vacated, but only because the Second Circuit thought the claim was fail on more preliminary grounds (standing).

  Frankly, I anticipate that this case will likely settle, because the Authors Guild was primarily bankrolling it, and they are now excluded as an associational plaintiff.  In that case, there will be a lower court holding that Section 108 copies are fair use, which was overturned on other grounds.  I don’t view that particularly negatively.  Especially because Section 108 copies are already so circumscribed (“commercial unavailability”), it’s hard to imagine that this will pose a problem for anyone.

More general notes about copyright

Here’s my general thinking about this case and its broader implications.

First, it’s out of the same court that will be looking at Authors Guild v. Google later this year.  There are some meaningful distinctions — Google is commercial, and provides snippets for viewing.  On reflection, I’m still pretty confident about Google’s fair use claims here.  The court held that a search index is a “quintessentially transformative use”, and that’s precedential for the Google case. Transformative uses mean that Google’s commercial status is much less important than it would be for a nontransformative use.  The snippets will be looked at as to whether its a “reasonable” quantity in light of the purpose, and that will be an important question in the Second Circuit, but I think there’s a very good chance that the snippets will be “reasonable”.  

Second, the Second Circuit is modifying its fair use analysis in a few ways, all of which are ultimately helpful to libraries. 

  • The first factor: “Transformativeness” now clearly includes search engine indexing.  Earlier cases certainly supported this strong case, and so did strong cases in other Circuits (AV v. iParadigm in the 4th Circuit; Perfect 10 and Amazon.com in the 9th Circuit).  But now the Second Circuit is on record as saying indexing is “quintessentially transformative”.  Given the strong value placed in the Second Circuit and all other Circuits on transformative uses, this doesn’t get any better.
  • The first factor is not just about “transformativeness”, and libraries and educational institutions rely on the “nonprofit educational” purpose.  The Court strongly endorsed that the first factor is not just about transformativeness, focusing on the purpose of providing accessible copies for print-disabled users.  
  • The second and third factors, nature of the work and quantity taken, did not offer any big new revelations, but both helpfully solidified that with these sorts of uses, taking the entire work and taking fictional/creative works are okay. 
  • The fourth factor, “effect of the use on the market”, was narrowed in a way that I think will be quite helpful for libraries.  The one piece of language that I did not like in this case was the Court’s citation to Harper & Row’s description of this factor as the most important of the four factors.  However, the Court took a very narrow reading on what that means, finding that this factor counts only harms that result from the secondary usesubstituting for an original use.  “A fair use must not excessively damage the market for the original by providing the public with a substitute for that original work.”  This approach really takes a big hit at the principle that American Geophysical Union is often cited for, which is that lost licensing revenue counts — because under the HathiTrust approach, lost licensing revenue for a transformative use will certainly not count.  While the Second Circuit has been moving in this direction for a while (in my view), this is a strong and clear statement of that view, and will be very helpful to library and educational users.  The unfortunate citation to Harper & Row does not, I think, hurt us much, except insofar as it might give some indication of how the Court is thinking for future cases (like Google Books).  But I tend to think it was just more of a quick throw-away citation than any considered reliance, because that point is made just once, and almost in passing. 

Three, the Court made short work of two of the Authors Guild’s arguments: 

  • The Court dismissed the Authors Guild’s claimed concerns about “security” pointing out that the system was very secure. 
  • The Court dismissed the Authors Guild’s incredibly silly argument that Section 108 obviated Section 107, by dropping a footnote and noting that, on its face, Section 108 includes a savings clause. 

All in all, I’m very pleased.  This was a big win, in a big court, and it will having lasting effects on the law of search engines, transformative uses, non-transformative uses, disability rights, and the “market” factor. A great day for libraries. 

I’m including below some additional media links, if you just can’t get enough of the cheering from the library/educational quarter. 

Google Books Wins on Fair Use in the District Court

 November 14, 2013

The Google Book Search is a “highly transformative” fair use, according to an opinion issued today by the District Court in the long-running Authors Guild v. Google case.   Judge Denny Chin granted summary judgment to Google on the the issue of fair use, citing amicus briefs from library associations and digital humanities scholars multiple times.  The Authors Guild has already announced its appeal.  The Second Circuit panel that will be hearing the appeal indicated in an earlier appeal that they thought this was a likely fair use. 

Highlights included: 

  • the Court determining that the search index was “highly transformative”;
  • repeated citations to the amicus briefs by the library associations and the digital humanities scholars; 
  • a specific holding that the copies that Google gave to libraries were also fair use, because they permitted fair uses by the libraries (in other words, HathiTrust-type uses); and 
  • direct citation to the HathiTrust case, which I am hopeful will create a certain synergy for that appeal.  

Two points that I think will be quite helpful going forward on issues include (1) the explicit consideration in the fourth factor (the “effect on the market” factor) of the benefits to authors of discoverability; and (2) the court’s assessment of Google’s “commerciality” in the first factor — although Google is a commercial actor, “[i]t does not engage in the direct commercialization of copyrighted works.”  That’s a very useful gloss on “commerciality” versus “nonprofit”, which helps limit commerciality to commercial use of the works — as opposed to the profit or non-profit status of the defendant.  

The Authors Guild has already announced they are appealing.  The appeal will be held in the Second Circuit, and we already know the panel — which heard the earlier class certification appeal and indicated at that time they thought this was a likely fair use. 

Read the actual opinion — it’s not too long, it’s a nice overview of the 8-year Google Books litigation, and it’s a classic fair use analysis with nothing too weird or difficult.

More reading: