A massive book-copying project by Google, giving its customers a chance to search the texts of more than twenty million volumes, survived a broad copyright challenge in the Supreme Court on Monday. With no noted dissents, the Justices voted to leave intact lower courts’ conclusion that what Google is doing with the project amounts to legal “fair use,” even of the volumes protected by exclusive rights.

Justice Elena Kagan, without explaining why, did not take part in the Court’s consideration of an appeal by the Authors Guild, a professional society of writers, joined by three authors whose books were copied: Jim Bouton, Joseph Goulden, and Betty Miles. The case is Authors Guild v. Google, Inc.

The challengers, in their appeal, argued that the lower court decisions awarding Google a summary victory deviated sharply from the traditional view that one who copies a protected creative work can only claim the legal defense of “fair use” if the copying satisfies the four factors that Congress spelled out in federal law.

What happened in this case, the challengers argued, was that lower courts permitted Google to rely upon its claim of “fair use” by inventing a new legal concept — that is, so long as the one who makes copies “transforms” the work into another, culturally useful mode, then it is legal. That, the guild and the authors asserted, “empowers judges to approve any re-use of copyrighted works that those judges deem socially beneficial.”

Google began its so-called “Library Project” twelve years ago, reaching a series of agreements with major research libraries. The libraries chose books from their collections to submit to Google for inclusion in its project. Google digitally scanned each volume, extracted text that it then made readable by machine, and created an index to that text for each book.

The vast majority of the copied books are non-fiction, and most of them are now out of print. Some, though, were still under copyright protection. Google put the copies on its servers, so that customers of its Google Books search process could gain access to snippets of books that conform to the search term or terms entered by the customer. In response, the search generated a list of books containing the search word or phrase, with snippets showing how that segment was used within the text.

The using public pays no fees for the search option. The site provides links so that the customer who desires to do so can buy the book.

Google did not pay the libraries for the chance to copy the books, but it does allow the libraries in return to download copies of both the digital image of a book and its machine-readable version as created by Google.

The Supreme Court’s denial of review of the copyright implications of the project was, as usual with such denials, unexplained.

The Court, in another item on its order list Monday, asked the federal government for its views on whether a federal law protecting military veterans’ retirement pay is violated by a state court ruling that requires a veteran to give a divorced spouse legal assurances against a reduction of a pension. In the case of Howell v. Howell, a veteran had given up a right to a pension as a condition for applying to get compensation for a disability that was related to military service. There is no deadline for the government’s response.

Recommended Citation: Lyle Denniston, Google’s book-copying project survives challenge, SCOTUSblog (Apr. 18, 2016, 2:15 PM), https://www.scotusblog.com/2016/04/googles-book-copying-project-survives-challenge/