by Molly Baltimore*
Does the fair use doctrine apply to online search results that display excerpts from copyrighted materials? Molly Baltimore (’17) addresses this question based on her experience at the Cardozo BMI Moot Court Competition held in March 2016, and concludes that it should be answered in the affirmative. The fair use doctrine allows secondary users to copy or reproduce other authors’ works without being liable for copyright infringement in certain instances. Ultimately, the Contribution argues that, under an expansive reading of the fair use doctrine, searchable online databases that merely convey information about a copyrighted work can do so in a transformative manner, and without causing real economic harm.
Technological advancement over the past few decades has allowed the public to access a vast wealth of knowledge and information at the click of a button. We no longer have to travel to a library or consult a professional to fact-check a friend’s argument or become a quasi-expert in a subject area. Considering the depth and complexity of the information available, navigational tools such as online databases have become indispensable to Internet users. However, the presence of copyrighted material on the World Wide Web presents difficult legal and policy questions. If we think copyrighted information should be freely available to the public via online databases, where do we draw the line? This article will argue that certain online text-searchable databases can constitute fair use even if they provide users copyrighted information. Specifically, search engines that serve a transformative purpose and limit the amount of protected material available to the user—such as the Google Books database—should constitute fair use.
Copyright exists in order “[t]o promote the Progress of Science and useful Arts.”2 Affording creators limited exclusive rights over their work creates an incentive for artists to create without fear of exploitation. However, there are limits to this protection. The fair use defense allows secondary users to copy or reproduce other authors’ works without being liable for copyright infringement in certain instances, usually where the secondary work serves as commentary on or a transformative appropriation of the original.3
Relatively recent technological innovation, particularly the growth of the Internet, is requiring courts to confront novel questions of fair use. Specifically, the creation and expansion of online text-searchable databases containing copyrighted information presents a unique legal quandary that has yet to be addressed by the Supreme Court.4 For example, the Google Books database allows users to read verbatim excerpts from copyrighted works.5 This tool and other similar online catalogues serve a useful function by allowing users to preview a variety of materials to aid in targeted research efforts. However, they also flirt with the boundaries of fair use by delivering a significant amount of protected material to users at no cost and without a license from the holders of copyright.6 As one scholar noted, these online categorizers have become a “virtual necessity in a complex maze of information,” and courts must find a way to accommodate their use while protecting expressive copyrighted language.7
To further the objective of copyright, courts have allowed fair uses of copyrighted work for nearly three centuries. The justification for this doctrine is that, while it is necessary to protect creators’ rights and interests, “the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance.”8 Determining fair use requires a fact-driven analysis that delicately balances the civic goals of copyright with the interests of authors. The fair use doctrine was codified in section 107 of the Copyright Act of 1976, which “allowed the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.”9 The statute laid out the following four-factored analysis to determine whether a particular instance of copying is considered a fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.10
The Supreme Court has recognized that in enacting section 107, Congress intended to codify the common law doctrine of fair use, and “not to change, narrow, or enlarge it in any way.”11 Both the statute and the doctrine of fair use require a case-by-case analysis in which each of the four statutory factors are “explored, and the results weighed together, in light of the purposes of copyright.”12 However, the Supreme Court has stressed that some of the factors carry more significance than others. Specifically, the first factor, which assesses the “purpose and character of the use,”13 is important. “[T]he 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.”14 Additionally, the fourth factor, which considers whether the secondary use has caused harm to the market for or value of the copyrighted work, “is undoubtedly the single most important element of fair use.”15
The large amount of flexibility embedded in this four-factor analysis presents advantages and disadvantages. Courts are free to make determinations of fair use on a case-by-case basis, and there “is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change.”16 At the same time, this latitude creates uncertainty, and the statute may be applied differently to similar factual scenarios, based on a judge’s ideology.17
With respect to online databases, the fair use defense should be read more expansively. These tools are unique in that they exist to advance the very purpose of copyright—the typical use of Google Books and similar search engines is educational and scholarly in nature.18 While the Supreme Court has never decided a case concerning the application of fair use doctrine to an online database, the Second, Fourth, and Ninth Circuits have upheld them as fair use.
In Perfect 10, Inc. v. Amazon.com, Inc., an adult entertainment magazine sued the creators of an online search engine for copyright infringement, claiming that the search engine provided thumbnail copies of protected images.19 Regarding the first factor of the fair use test, the Ninth Circuit held that the search engine constituted a transformative use, as “even making an exact copy of a work may be transformative so long as the copy serves a different function than the original.”20 The court reasoned that the search engine served the purpose of allowing users to identify photos of interest to direct them to their originating webpage, whereas the original photos themselves served an entertainment or aesthetic purpose.21 Likewise, the Fourth Circuit held that a secondary use of student papers in an online plagiarism detection database was transformative and constituted fair use.22
The Second Circuit has recently decided two cases concerning online text-searchable databases. In Authors Guild, Inc. v. HathiTrust, individual authors and organizations of authors claimed that an online digital library infringed their copyrights by scanning the full text of books into a database.23 The court held the use to be transformative, as the database provided information about the books.24 However, important to the holding in HathiTrust was the fact that the database did not reveal any text from the books, which was the situation in Authors Guild v. Google, Inc.
In Google, the Second Circuit reasoned that the text snippets revealed by the database were necessary to give the searcher enough—but not too much—context to determine whether the copyrighted work “falls within the scope of [the user’s] interest” and, thus, whether he should purchase it.25 Furthermore, the database imposed significant limitations on the amount of information made available to the user. The database only displayed snippets that were approximately one-eighth of a page in length and blocked one snippet per page as well as one complete page for every ten pages.26 Regarding the fourth and “most important” factor, the Google court acknowledged that “the more the copying is done to achieve a purpose that differs from the purpose of the original, the less likely it is that the copy will serve as a satisfactory [market] substitute for the original.”27 Thus, it is less likely that a transformative use will result in a direct economic harm to the original. Instead of analyzing the fourth factor on the extremely broad “potential” economic harm to the copyright holder, courts should require evidence of real harm.28
Fair use has also been implicated when reference guides utilize portions of copyrighted material. For example, in Warner Bros. Entm’t Inc. v. RDR Books, an enthusiastic fan of the Harry Potter book series created an online encyclopedia and print “Lexicon” that served as reference guides, allowing readers of the series to easily navigate particular portions of the books.29 While the court found that the secondary work was transformative in nature, the degree of verbatim copying of the original works was such that it weighed against a finding of fair use. However, scholars have observed that the question remains whether the court would have found the Lexicon to be fair use had it existed purely in its electronic form.30
As these cases suggest, online databases that convey copyrighted information can do so in a transformative manner without causing real economic harm. Such databases provide information about works of authorship. Rather than serving the same entertainment or aesthetic purpose as the underlying material, they operate in a market distinct from that for the original work. Given that every federal court of appeals to rule on the issue has upheld these databases as fair use, the Supreme Court should follow suit if given the chance.
* The following article reflects my experience in the 2016 Cardozo BMI Moot Court Competition. The problem involved the creator of an online text-searchable database based on a fictitious, popular book and film series called Charlie Trotter. The copyright holders of the book and film series filed suit alleging copyright infringement, as the database creator copied the books into the database and revealed text snippets to users at no cost. The question presented was whether the alleged infringer was entitled to the fair use defense under section 107 of the Copyright Act.
2. U.S. Const., art. I, § 8, cl. 8.
3. See 17 U.S.C. § 107; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
4. See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), cert. denied, 136 S. Ct. 1658 (2016); Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).
5. See Google, 804 F.3d at 202.
6. See HathiTrust, 755 F.3d at 98; Google, 804 F.3d at 221; see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. 2006).
7. Andrew Sarrol, The Copyright Implications of Searchable Databases: A Methodology for Analyzing the Fourth Fair Use Factor, 3 Seton Hall Circuit Rev. 527, 529 (2007).
8. Google, 804 F.3d at 212.
9. 17 U.S.C. § 107.
11. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (quoting H.R. Rep. No. 94-1476, at 66 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5680).
12. Campbell, 510 U.S. at 578 (citations omitted).
13. 17 U.S.C. § 107(1).
14. Campbell, 510 U.S. at 579.
15. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985).
16. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448 n.31 (1984).
17. Nari Na, Testing the Boundaries of Copyright Protection: The Google Books Library Project and the Fair Use Doctrine, 16 Cornell J.L. & Pub. Pol’y 417, 433 (2007).
18. Hannibal Travis, Building Universal Digital Libraries: An Agenda for Copyright Reform, 33 Pepp. L. Rev. 761, 822 (2006).
19. Perfect 10, 508 F.3d 1146.
20. Id. at 1165.
22. See A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009).
23. HathiTrust, 755 F.3d at 87.
24. Id. at 97.
25. Google, 804 F.3d at 217-18.
26. Id. at 210.
27. Id. at 223.
28. Travis, supra note 18, at 814.
29. 575 F. Supp. 2d 513 (S.D.N.Y. 2008).
30. Shira Siskind, Crossing the Fair Use Line: The Demise and Revival of the Harry Potter Lexicon and Its Implications for the Fair Use Doctrine in the Real World and on the Internet, 27 Cardozo Arts & Ent. L. J. 291, 307 (2009).