The first fair use factor's inquiry is whether and to what extent the new work supersedes and is transformative. While recognizing that a transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works and that such works thus lie at the heart of the fair use doctrine's guarantee. 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.
Plaintiffs, who are authors of published books under copyright, sued Google, Inc. (Google), the defendant, for copyright infringement in the United States District Court for the Southern District of New York. Through its Library Project and its Google Books project, acting without permission of rights holders, Google has made digital copies of tens of millions of books, including Plaintiffs' that were submitted to it for that purpose by major libraries. Google has scanned the digital copies and established a publicly available search function – this was alleged to constitute infringement of Plaintiffs' copyrights. Plaintiffs sought injunctive and declaratory relief as well as damages. Google defended on the ground that its actions constitute "fair use," which, under 17 U.S.C. § 107, is "not an infringement." The district court agreed; thus, the plaintiffs appealed.
Did the defendant’s actions constitute infringement of Plaintiffs’ copyrights?
The Court held that Defendant's unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works were non-infringing fair uses under 17 U.S.C.S. § 107 because the purpose of the copying was highly transformative, the public display of text was limited, and the revelations did not provide a significant market substitute for the protected aspects of the originals, and defendant's commercial nature and profit motivation did not justify denial of fair use. Moreover, the Court posited that Defendant's provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries would use the copies in a manner consistent with the copyright law, also did not constitute infringement, nor was defendant a contributory infringer.