Order Code RS22356
December 28, 2005
CRS Report for Congress
Received through the CRS Web
The Google Book Search Project: Is Online
Indexing a Fair Use Under Copyright Law?
Robin Jeweler
Legislative Attorney
American Law Division
Summary
Google, Inc. is digitally scanning the collections of several prominent libraries in
order to create a vast searchable database of literary works. Copyright holders who have
not authorized and object to the digitization have filed suit against the company. This
report provides background on the pending litigation. It will be updated as judicial
developments warrant.
Complaints for copyright infringement were recently filed against Google, Inc. by
a variety of authors and representatives of the book publishing industry.1 The complaints
specifically challenge Google’s “Print Library” project, recently renamed “Google Book
Search,” an effort by Google in conjunction with several library partners to scan books
into a digital format so that they may be searched textually. Although the case is in its
very early stages, the issues presented have captured national attention. Once again, new
technology and traditional principles of copyright law appear to be in conflict. Because
of the unique facts and issues presented, there is scant legal precedent to legitimize
Google’s claim that its project is protected by copyright law’s fair use exception to
liability for infringement.2 Thus, questions presented may be ones of first impression for
the courts.
Google’s Book Search Project. In December of 2004, Google announced a
partnership with several major libraries to make digital copies of their collections and
permit the text of the literature to be searched online by the Google search engine.3
1 McGraw-Hill Companies, Inc. v. Google, No. 05 CV 8881 (S.D.N.Y., filed Oct. 19, 2005); The
Author’s Guild v. Google, No. 05 CV 8136 (S.D.N.Y., filed Sept. 20, 2005).
2 17 U.S.C. § 107.
3 Participating libraries include those at the University of Michigan, Harvard University, Stanford
University, Oxford, and the New York Public Library. For details, see [http://books.google.com/
googlebooks/partners.html].
Congressional Research Service ˜ The Library of Congress

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Google is providing its partnering libraries with a digital copy of the donor institution’s
collection.
The Print Library Project is only one of several initiatives by the company to enhance
the breadth of its online search capabilities. It was originally a component of “Google
Book Search,” which included the Library Project and its “Partner Program,” an online
book marketing program designed to help publishers and authors promote their books by
displaying a limited number of sample pages in connection with a user’s word search.
The Library Project was described on its website:
When you click on a search result for a book from the Library Project, you’ll see the
Snippet View which, like a card catalog, shows you information about the book plus
a few snippets — a few sentences of your search term in context. You may also see
the Sample Pages View if the publisher or author has given us permission or the Full
Book View if the book is out of copyright. In all cases, you’ll see ‘Buy this Book’
links that lead directly to online bookstores where you can buy the book.4
In addition, “Google Video” offers a search vehicle for material from archived television
programs, educational videos, personal productions, and other video media. Users can
search the closed captioning and text descriptions of its video archive for relevant results.
However, in the case of both the Book Partner Program and the video program, content
owners actively submit their material for inclusion in the searchable database. Only the
Library Project does not seek authorization to copy from content owners. Hence, it is the
only program that has been challenged in court.
After some academic and commercial publishers objected to the Library Project,
Google took a brief hiatus from scanning to allow publishers time to identify works that
they, i.e., the copyright holders, do not want to be included in the digital database. This
has been referred to an “opt out” plan. The general rule of copyright law requires a
prospective user to seek permission for use; Google has reversed the process by
announcing its intention to digitize entire collections of the contributing libraries unless
a content owner opts out by acting to withhold permission. This contributes to the content
holders’ claim that Google is engaged in massive copyright infringement.
The Parties’ Positions. The complaint filed by plaintiff publishing companies
(the Publishers) accuses defendant Google of massive copyright infringement. By
digitizing copyrighted works without permission, Google is alleged to violate the
copyright holders’ exclusive rights to copy and/or display protected work.5 Plaintiffs
contend that Google’s project is strictly commercial because it “pays” for the libraries’
collections by delivering digital copies back to them; and, Google will realize significant
advertising revenues as a consequence of its enhanced search capabilities.
Defendant Google essentially contends that its opt out program negates any
infringement liability. But, if infringement were found, Google argues that its activity is
protected by copyright’s fair use doctrine. Google cites the U.S. Court of Appeals for the
4 [http://books.google.com/googlebooks/library.html]. For more background on the program, see
Google’s website at [http://books.google.com/googlebooks/about.html].
5 17 U.S.C. § 106.

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Ninth Circuit’s decision in Kelly v. Arriba Soft Corp. as support for the proposition that
Internet search engines’ indexing activities constitute a fair use.6
The Law. As stated above, copyright law confers on the rights holder the exclusive
right to control reproduction, display, and distribution of a protected work. Accordingly,
in order to use a copyrighted work, one seeks permission from the owner and negotiates
the terms, conditions, and payments for use. Google claims that for it to actively seek
permission from every rights’ holder in the multi-library collections would be impractical
and prohibitive. The Publishers claim that Google’s “opt out” program “stands copyright
law on its head.”7 One cannot, they argue, generally announce one’s intention to infringe
multiple copyrighted works and collectively offer rights holders the opportunity not to
have their work infringed.
Fair Use. Assuming a court were to find that Google’s digitization of copyrighted
works is infringing, the question becomes whether its activities are a fair use. The fair use
exemption derives from common law and the First Amendment.8 As codified in the
Copyright Act, it establishes criteria for a court to consider in determining whether an
infringing use is “fair.” Specifically, 17 U.S.C. § 107 provides that, notwithstanding other
provisions of the law, 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 a
fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work.
Because fair use is an “equitable rule of reason” to be applied in light of the overall
purposes of the Copyright Act, other relevant factors may also be considered.9
The court hearing the case will make findings of fact and assign relative value and
weight to the fair use factors in its analysis. This report will not attempt to predict an
outcome in the pending litigation but does make some observations with respect to fair
use analysis and the issues at hand.
6 336 F.3d 811 (9th Cir. 2003). For more background on Kelly v. Arriba Soft Corp., see CRS
Report RS21206, Fair Use on the Internet: Copyright’s Reproduction and Public Display Rights,
by Robin Jeweler.
7 Publishers: Value of Book Search Project Shows That Scanning Is Not Fair Use, 71 BNA
PATENT, TRADEMARK & COPYRIGHT J. 94 (Nov. 25. 2005).
8 Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
9 Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 448, 454 (1984).

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The Library Project has the potential to be a great boon to scholarship, research, and
the public in general. It is, nevertheless, commercial in nature because Google anticipates
that it will enhance its service’s utilization by the public and concomitantly increase
advertising fees. With respect to the first factor, the purpose and character of use, the
searching and indexing goal appears to be a highly transformative use of the copied text.
There is little question that indexing basic information about any book alone, absent
copying, would not constitute copyright infringement. While displaying “snippets” of text
is closer to infringing activity, the prospective display, as described by Google, does not
appear to usurp or negate the value of the underlying work.
The second factor is the nature of the copyrighted work. Digitizing the collections
of the named libraries will encompass both factual and creative works, the latter being
entitled to the highest level of copyright protection. How the court views the third factor
— amount of the portion used — will be significant. In order to create its mega-
database, Google will scan the entire copyrighted work, a major consideration weighing
against fair use. But it intends to display, i.e., use, at any given time, only brief excerpts
of the searchable text. Hence, is the digital reproduction incidental to an otherwise fair
use or is it impermissibly infringing?
Finally, what will be the Library Project’s effect on the potential market for or value
of the copyrighted works? Here, Google makes a strong argument that its indexing and
text searching capability has the potential to greatly enhance the market for sales for
books that might otherwise be relegated to obscurity. Its “sampling” of text permits
members of the public to determine whether they wish to acquire the book.
The Publishers counter that copyright owners routinely receive license fees for
authorized sampling. Google’s project may deprive them of the opportunity to participate
in the creation of similar databases over which they have control and input. The
Publishers have also expressed concern that the digital edition of the work Google returns
to the participating library may facilitate piracy and/or additional unauthorized uses.10
Case Law. Although a court’s finding that there is a fair use exception to copyright
infringement is context-specific, it naturally looks to precedent for guidance. Google
asserts that Kelly v. Arriba Soft Corp. supports its claim of fair use, and in many respects
it does. In Kelly, the court found that Arriba Soft’s search engine, which, in response to
a user’s inquiry, compiled a database of images by copying pictures from websites
(without authorization) and displayed them as thumbnail images, was a sufficiently
transformative use of copyrighted material to be a fair use. Although providing indexing
information alone does not implicate copyright infringement, displaying limited quotes
from a literary work may be consistent with fair use. Indeed, a quote from a literary work
is a far more limited reproduction and display than a thumbnail image of a full-sized one.
However, a major distinction between the Kelly case and Google’s Library Project is that
in the former, content owners voluntarily uploaded their images to the Internet.11 Here,
10 In addition to fair use, the Copyright Act contains additional limitations on exclusive rights
of copyright holders. 17 U.S.C. § 108, for example, gives certain reproduction rights to libraries
and archives, but these provisions are not relevant to the issue discussed.
11 Some observers suggest that uploading to the Internet may be construed as a limited license for
(continued...)

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the search engine is copying material to create a new database to enable the search
capability.
Hence, the arguably unique question presented is whether apparent prima facie
infringing activity that facilitates an arguably legitimate use is indeed a fair one. In this
broad respect, the Supreme Court’s decision in Sony Corporation of America v. Universal
City Studios12 is apposite. In Sony, the Court held that the sale of the video recording
machine to “time shift” broadcast television for personal home viewing was not
contributory copyright infringement. The Court articulated a new category of fair use,
namely, time shifting. Although the factual underpinnings and legal precedent of this
decision are not particularly relevant to nor controlling in the instant case, the Sony
decision itself stands as a landmark in copyright law demonstrating the willingness of the
Court to balance new technological capablilites against traditional principles of copyright
law.
Although Sony sanctioned “time shifting” of in-home television broadcasting, neither
the U.S. Supreme Court nor the lower courts have evidenced willingness to expand this
judicially created category of fair use. In UMG Recordings v. MP3.Com, Inc., a U.S.
district court rejected out-of-hand the defendant’s proffered fair use defense as a
justification for unauthorized copying of plaintiffs’ audio CDs.13 The defendant claimed
that its unauthorized copying enabled it to provide a service to proven owners of a CD,
namely “space shifting,” or enabling them to obtain access to the music on the CD
through its subscription service.
In the case of Google, many copyright experts see analogies to the technological
considerations inherent in Sony. The digital scanning — the alleged infringing activity
— is viewed as incidental to a valid and socially useful function, indexing.14 Others view
Google’s activity as prima facie copyright infringement, with little or no extenuating
circumstances.15
Conclusion. How the court (or courts) that consider this case define the issues
presented will ultimately determine whether the suit against Google sets an important
precedent in copyright law. Viewed expansively, the court may find that copying to
promote online searching and indexing of literary works is a fair use. To many observers,
11 (...continued)
foreseeable uses such as those by Internet search engines. Jonathan Band, The Google Print
Library Project: Fair or Foul?, 9 J. OF INTERNET LAW 1, 4 (Oct. 2005).
12 464 U.S. 417 (1984).
13 92 F.Supp.2d 349, 352 (S.D.N.Y. 2000)(“[D]efendant’s ‘fair use’ defense is indefensible and
must be denied as a matter of law.”).
14 See, e.g., Jonathan Band, supra; Christopher Heun, Courts Unlikely to Stop Google Book
Copying, INTERNETWEEK (Sept. 2, 2005) at [http://internetweek.cmp.com/showArticle.jhtml?
articleID=170700329].
15 See, e.g., Elisabeth Hanratty, Google Library: Beyond Fair Use?, 2005 DUKE L. & TECH. REV.
10 (2005); Raymond Nimmer, Google Lawsuit Begins; Fair Use (Oct. 3, 2005), online at
[http://www.ipinfoblog.com/archives/intellectual-property-33-google-lawsuit-begins-fair-use.
html].

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such a holding could be the jurisprudential equivalent of Sony’s sanctioning of “time
shifting.” If the court adopts a more narrow view of fair use that precludes Google’s
digitization project, searchable literary databases are likely to evolve in a less
comprehensive manner but with the input and control of rights holders who view them
as desirable and participate accordingly.

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