Authors Guild Expands On Importance Of Transformative Purpose Use To Fair Use Analysis

In an opinion by Judge Leval, the United States Court of Appeals for the Second Circuit has upheld Google's digitization program of full text copying of books. Expanding on its decision last year in Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), the court held that Google's program was highly transformative and unlikely to substitute for any of the original works and, thus, was a fair use under the Copyright Act.

Background

In HathiTrust, the Second Circuit held that it was fair use for research universities to digitize full copies of millions of works to enable users to determine the number of times a particular word appears or to provide full replacement copies of the work to persons with disabilities. In doing so, the court held that HathiTrust's text-searchable database is a "quintessentially transformative" use in that "it does something more than repackage or republish the original copyrighted work" by "add[ing] something new, with a further