This document provides background on two key copyright cases - Authors Guild v. HathiTrust and Authors Guild v. Google. It summarizes the key aspects of both cases. In Authors Guild v. HathiTrust, the Authors Guild sued the HathiTrust for creating a digital database of books from its partner libraries that allowed for full-text searches. In Authors Guild v. Google, the Authors Guild sued Google for its Google Books program that digitally copied books from partner libraries to create a searchable database. The document discusses the litigation history and analyzes the cases under US copyright law and the fair use doctrine. It aims to critique the courts' findings that the digital databases were transformative fair uses.

1. Kremer 1
Searching for Fair Use:
Authors Guild, Inc. v. HathiTrust and Authors Guild, Inc. v. Google, Inc.
By: Anthony Kremer
I. Introduction
The way society accesses and processes information is changing. Books that once took
months to transcribe by hand can now be downloaded with the simple click of a mouse button.
The only thing more astonishing than these developments in technology is the rate at which they
are occurring. Robert Darnton, director of the Harvard Library, has written extensively on the
history of books and understands that society’s ability to express itself and then study that
expression is changing at an exponential rate.1 In a collection of his essays entitled “The Case
for Books,” he asserted, “[t]he pace of change seems breathtaking: [to go] from writing to the
codex [took] 4,300 years; from the codex to the movable type, 1,150 years; from movable type to
the Internet, 524 years; from the Internet to search engines, 17 years; from search engines to
Google’s alogithmic relevance ranking, 7 years[.]”2 If this short history is any indication, the
way mankind writes, researches, and expresses itself could look very different just a few years
from now.
As these developments continuously occur, it is important to remember that original
works of authorship are what make these developments possible and relevant. Books, texts,
pictures, and other original works fuel this development, and as they do, their value to and
impact on society increases greatly. As the value and uses for these works continue to grow, it is
1 Robert Darnton, THE CASE FOR BOOKS 23 (2009).
2 Id.

2. Kremer 2
important that authors remain encouraged and motivated to produce more original works.
Protecting the copyrights that authors have in their works is critical to accomplishing this.
Organizations like Google and their library partners, some of which have teamed up to
form an organization called the HathiTrust, pose a drastic threat to the copyrights of authors.
With its Google Books program, Google is copying entire books, many of which are subject to
copyrights, to create a digital database of books that can be searched by users. Recent cases
from the Second Circuit and the Southern District of New York have indicated that such use of
copyrighted works by Google and its partners will continue to be allowed under the fair use
doctrine. This is due, in large part, to the suspect conclusion that these databases are
“transformative” uses of original works that pose no economic threat to copyright holders’
original works. The goal of this casenote is to demonstrate that these actions cannot be defended
by the fair use doctrine and are contrary to the fundamentals of United States Copyright law.
Part II of this casenote will provide a basic framework of copyright law and the fair use
doctrine as discussed under federal statute and case law. It will also discuss the Authors Guild v.
HathiTrust and Authors Guild v. Google, Inc. decisions and their findings that full-text search
databases are fair use.3 Part III will critique the HathiTrust and Google decisions’ analysis of the
four fair use factors enacted by Congress and comment on the implications of the impending
Google appeal currently in front of the Second Circuit. Part IV will summarize issues presented
and provide reflection.
3 Google and the HathiTrustuse their digital libraries to provideother services thatare not at issuefor the
purposes of this casenote

3. Kremer 3
II. Background
A. Related Statutes and Cases
The basis of the United States’ copyright law comes from the Constitution. Article I,
section 8, clause 8 states that Congress has the power, “To promote the progress of science and
useful arts, by securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries[.]”4 “Science” refers to copyrights, while “useful arts” refers
to another area of intellectual property law known as patents.5 The Supreme Court has declared
a function of copyright law in the United States is to encourage expression that will benefit the
public by protecting an author’s right to use and economically benefit from their works.6
Acting under the powers vested in it, Congress has passed several comprehensive
copyright acts. The most recent of these was the Copyright Act of 1976, embodied in Title 17 of
the United States Code (“the USC”). Section 102 of Title 17 of the USC grants a copyright to an
author for a work that is “original” and “fixed in any tangible medium expression.”7 While facts
and ideas cannot be copyrighted by authors, an author’s original expression regarding facts and
ideas can be.8 A copyright gives certain rights to the holder of it. Included among these rights is
the ability to produce and distribute copies of the work and to prepare “derivative” works of the
original.9 Derivative works are defined in § 101 of Title 17 as:
a work based upon one or more preexisting works, such as a. . . motion picture
version. . . abridgment, condensation, or any other form in which a work may be
recast, transformed, or adapted. A work consisting of editorial revisions. . .
4 U.S. Const. art. I,§ 8, cl.8.
5 See 1 MelvilleB.Nimmer and David Nimmer, NIMMER ON COPYRIGHT § 1.02 (Matthew Bender, Rev. Ed.).
6 See Mazer v. Stein, 347 U.S. 201, 219 (1954).
7 17 U.S.C.S. § 102(a) (LexisNexis 2014).
8 See Baker v. Selden, 101 U.S. 99, 103-04 (1879).
9 17 U.S.C.S. § 106(1),(2) (LexisNexis 2014).

4. Kremer 4
elaborations, or other modifications which, as a whole, represent an original work
of authorship, is a ‘derivative work.’10
The doctrine of fair use stands as an exception to the exclusive rights of copyright
holders. The doctrine allows for the unauthorized copying of copyrighted works under certain
circumstances. Congress enacted § 107 to codify the fair use doctrine which was previously a
common law doctrine.11 Section 107 can be divided into two main parts. The first part is the
preamble. It states, in relevant part, that works can be copied by parties that are not the
copyright holders, “for purposes such as criticism, comment, news reporting, teaching. . .
scholarship, or research. . .”12 The uses listed in the preamble are not meant to be exhaustive, but
are instead illustrative of the types of uses that can result in a finding of fair use.13 The second
part of the statute lists factors courts should consider when the defense of fair use is raised.14
These factors include, but are not limited to,
(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.15
The legislative history of § 107 reveals that Congress, in passing the statute, did not
intend to “freeze” the court’s conception of fair use as it existed in 1976.16 Instead, it envisioned
10 17 U.S.C.S. § 101 (LexisNexis 2014).
11 H.R. Rep. No. 94-1476,at65-66 (1976);See also Sony Corp. of Am. v. Universal City Studios,Inc., 464 U.S. 417,
445-46 (1984).
12 17 U.S.C.S. § 107 (LexisNexis 2014).
13 See H.R. Rep. No. 94-1476,at 65; See also 17 U.S.C.S. § 101. “The terms ‘including’and ‘such as’areillustrative
and not limitative”.
14 17 U.S.C.S. § 107.
15 Id.
16 H.R. Rep. No. 94-1476,at66.

5. Kremer 5
that the courts would continue to adapt “during a period of rapid technological change.”17 This
language was quoted by the Supreme Court in Sony Corp. of Am. v. Universal City Studios, Inc.,
a landmark decision regarding fair use.18 There, the Court found that the use of video cassette
recorders in homes to copy copyrighted broadcasts, a revolutionary technological development at
that time, constituted fair use.19
The Supreme Court’s most recent, influential, and in-depth analysis regarding fair use
came in Campbell v. Acuff-Rose Music.20 In that case, Acuff-Rose Music (“Acuff-Rose”) filed a
copyright infringement action against the music group 2 Live Crew.21 Acuff-Rose asserted that
2 Live Crew infringed on one of Acuff-Rose’s songs, entitled “Oh, Pretty Woman,” by writing a
song that sounded very similar.22 2 Live Crew maintained the song was a parody of Acuff-
Rose’s song.23 The district court ruled against Acuff-Rose, declaring that 2 Live Crew’s song
was a fair use.24 The Sixth Circuit Court of Appeals, however, reversed and remanded the
case.25 The court noted that the commercial nature of the parody and the belief that 2 Live Crew
had taken the “heart” of Acuff-Rose’s song resulted in copying that weighed against a finding of
fair use.26 As a result, 2 Live Crew had infringed on Acuff-Rose’s copyright.27
On appeal, the Supreme Court reversed the Sixth’s Circuit’s decision.28 In doing so, it
cited the judicial history of the fair use doctrine and analyzed each of the four fair use factor
17 Id.
18 Sony Corp. of Am. v. Universal City Studios,Inc., 464 U.S. 417,447 (n.31) (1984).
19 See Id. at 455.
20 See Campbell v. Acuff-Rose Music,510 U.S. 569 (1994).
21 Id. at572.
22 Id.
23 Id.
24 Id. at573.
25 Id.
26 Id.
27 Id.
28 Id. at594.

6. Kremer 6
listed in § 107.29 The Court’s analysis of the first factor has since served as a ritualistic utterance
for all courts in their own analysis of fair use. To the Court, an often critical inquiry in analyzing
the first factor is to determine whether the work in question is “transformative.”30 In determining
if a work is transformative, courts must consider, “whether the new work merely ‘supersede[s]
the objects’ of the original creation. . . or instead adds something new, with a further purpose or
different character, altering the first with new expression, meaning, or message[.]”31 However,
the Court noted that transformative uses are not always necessary for a finding of fair use.32 The
court also declared that whether the copyrighted work was used for commercial purposes by the
alleged infringer is an important consideration, but is dispositive, when examining the first fair
use factor and the fair use analysis as a whole.33
Regarding the second factor of §107, the Court asserted that the type of work potentially
being infringed upon is relevant to the fair use inquiry.34 For example, fictional and creative
works, the Court observed, should receive more protection than factual works.35 However, the
Court also noted this factor’s limited influence.36 In analyzing the third factor, the Court noted
that determining how much copying occurred given the type of use by the potential infringer is
relevant, especially in considering the analysis of the fourth factor and the economic
consequences of the copying.37
Finally, the Court analyzed the fourth factor. It espoused that courts must determine
“whether unrestricted and widespread conduct. . . by the defendant. . . would result in a
29 See Id. at 575.
30 Id. at578-79.
31 Id. at579. The Supreme Court’s standard for transformativeuses quotes and borrows heavily fromPierre Leval’s
Toward a Fair Use Standard. 103 Harv. L. Rev. 1105,1111 (1990).
32 Id. (citingSony Corp. of Am. v. Universal City Studios,Inc., 464 U.S. 417 at 455 (1984)).
33 Id. at584.
34 Id. at586.
35 Id. Ideas cannotbe copyrighted under U.S. law.See Baker v. Selden, 101 U.S. 99, 103-04 (1879).
36 Id.
37 Id. at586-87.

7. Kremer 7
substantially adverse impact on the potential market for the original” and noted this inquiry must
also consider “harm to the market for derivative works.”38 Applying its analysis of §107, the
Supreme Court ultimately concluded the following: (1) 2 Live Crew’s song, as a parody of the
original, was transformative, (2) copying the “heart” of the creative and original song was
necessary to the parodic use of the work, and (3) 2 Live Crew’s song did not replace Acuff-
Rose’s song on the market.39 As a result, the Court found that the use was fair despite the fact
that it resulted in commercial gain for 2 Live Crew.40 Since the decision was written, Campbell,
its standard for transformative uses, and its analysis of the fair use doctrine have played a major
role in determining fair uses cases such as HathiTrust and Google.
B. Main Cases
i. Google Books and the HathiTrust
Google, one of the world’s most popular internet search engines, currently operates the
Google Books program, which digitizes books for various purposes.41 One of the facets of this
program is the “Library Project.”42 Under the Library Project, Google works with participating
libraries to digitize their book collections.43 These libraries consist of both public domain works
(works no longer protected by copyright) and copyrighted works, but some of the libraries only
allow Google to copy public domain works.44 Google has not sought any permission from
copyright holders before making digital copies of the copyrighted works within these libraries,
38 Id. at590. (internal quotations omitted).
39 See Id. at 579-95.
40 Id. at571.
41 Authors Guild v. Google, Inc., 954 F. Supp. 2d, 282, 285 (S.D.N.Y. 2013).
42 Id.
43 Id. at286.
44 Id. at285-86.

8. Kremer 8
and Google distributes digital copies to member libraries.45 University libraries participating in
the program include the University of Michigan, Cornell University, and Indiana University.46
Some of the participating universities, working with other organizations, formed the
HathiTrust.47 The HathiTrust pooled together the collections of digital copies it received from
Google to create a research database accessible by the public called the HathiTrust Digital
Library (HDL).48 Users can search for keywords in the HDL, and the database runs those terms
against the text of the digital copies, compiles a list of book titles that contain the keywords, and
states all of the pages and the number of times the keywords appeared within those books.49
Users of the HDL database cannot access the full digital copies, and the search results give no
previews or “snippet[s]” of the book.50 The HathiTrust also uses the database of digital books
for other purposes, such as providing copies of the text to students with disabilities and replacing
lost or damaged books that could not be replaced easily or cheaply.51
In addition to providing the libraries of the HathiTrust with digital copies of the books
contained in their own libraries, Google uses those digital copies, as well as copies provided
voluntarily by some copyright owners, in its own search engines.52 In contrast to the
HathiTrust’s HDL database, by searching for keywords in Google’s database, users can see
“snippets” of books that contains the keywords of their search.53 However, Google prevents
users from viewing an entire work by implementing certain protective measures. One such
45 Id.
46 Authors Guild v. HathiTrust, 755 F.3d 87, 90 (2nd Cir.2014).
47 Id.
48 Id. at91.
49 Id.
50 Id.
51 Id. at91-92. Again, those uses will not be at issuefor the purposes of this casenote.
52 Authors Guild v. Google, Inc., 954 F. Supp. 2d, 282, 286 (S.D.N.Y. 2013).
53 Id. at286-87.

9. Kremer 9
measure “blacklists” or blocks certain portions of individual pages and ten percent of the pages
in the entire book from coming up in search results.54 In 2011, Google stopped putting up
advertisements on search results pertaining to works that it has received permission from
copyright holders to use.55 Google never put ads on digital results obtained from libraries.56
ii. The Litigation
The litigation surrounding the Google Books project and the HDL has extended down a
long, winding road. The original suit between the Authors Guild, consisting of authors and
others seeking to secure “copyright and contractual interests of published writers[,]”and Google
began in 2005.57 A far reaching settlement was proposed in 2008, but it was ultimately rejected
by the district court in 2011.58 Following the failed settlement, the Authors Guild moved for
class certification in the impending suit.59 While approved at the district court level, the Second
Circuit set aside that judgment, opining that Google’s fair use defense should first be decided.60
Subsequently, the Authors Guild also sued the HathiTrust.61
Currently, the litigation revolves around two main cases, Authors Guild v. HathiTrust and
Authors Guild v. Google. In HathiTrust, the Authors Guild sued the HathiTrust on the grounds
that by obtaining, storing, and utilizing unauthorized digital copies of copyrighted works, the
54 Id. at287.
55 See Id. at 285-87.
56 See Id. at 286.
57 Id. at284-85.
58 Id. at288. The settlement was extremely controversial. 5 MelvilleB.Nimmer and David Nimmer, NIMMER ON
COPYRIGHT § 20.03 [D][1] (Matthew Bender, Rev. Ed.). Among other things,it involved an up-front payment by
Google of atleast$54 million followed by a portion of the revenue stemming from the Google Books program. Id.
In return, Google received a licenseto copy the books it already had copied as well as those that it would copy
moving forward. Id. The settlement was rejected by the districtcourtin 2011 becauseof these far reaching
implications. Id.at [D][2].
59 Id.
60 See Id. at 288-89.
61 Authors Guild v. HathiTrust, 755 F.3d 87, 92-93 (2nd Cir.2014).

10. Kremer 10
HathiTrust had infringed on the copyrights of many authors.62 After analyzing each of the fair
use factors of § 107, the Southern District of New York found in favor of the HathiTrust, stating
its use of the copyrighted works for the HDL database constituted fair use.63
On appeal, the Second Circuit agreed with the district court.64 In analyzing the first
factor of § 107, the court determined that the search functions of the database were
“quintessentially [a] transformative use.”65 Authors, the court contended, do not write their
books intending for them to be used in search databases and that “the HDL [search results add]
to the original [copyrighted books] something new with a different purpose and a different
character” that goes beyond “merely repackag[ing]. . . the original[s]. . . or merely recast[ing] ‘an
original work into a new mode of presentation[.]”66 In the end, the court found that the HDL
search results are so transformative that they have “no resemblance” to the digitized books it
searches through.67
In analyzing the second factor, the court admitted that the copyrighted works in the HDL
database merited protection under copyright law, but asserted the transformative nature of the
database greatly mitigated these concerns.68 The court also found in favor of the HathiTrust on
the third factor, observing that fair uses can result in the copying of entire works.69 Furthermore,
the court reasoned that in order for the HDL database to be effective for its transformative
purpose, it needed to contain full copies of the works.70 The court was not concerned with the
62 Id. at93.
63 Id.
64 Id. at101.
65 Id. at97.
66 Id.
67 Id.
68 See Id. at 98.
69 Id. (citing Bill GrahamArchives v.DorlingKindersley, 488 F.3d 605, 607,614 (2nd Cir.2006)).
70 Id.

11. Kremer 11
fact that the HathiTrust kept copies of the digitized works at multiple facilities, noting that this
was necessary for the HDL servers to more effectively process search inquiries and to prevent a
complete loss of the digitized works.71
In analyzing the fourth factor, the court agreed with the HathiTrust that the HDL database
posed no threat to the “potential traditional market” for printed books and did not threaten to
supplant the use of the original books in society.72 The court further declared that the copyright
holder’s loss of potential revenue from licensing to organizations that are creating text search
databases is irrelevant because the results do not replace the original work.73 The court also
quickly dismissed the notion that the HathiTrust library could be breached, resulting in
unauthorized copying and distribution of the digital text of the works.74 Weighing the four
factors together, the Second Circuit decided that the HDL was fair use of copyrighted works.75
A very similar scenario played out at the district court level in Authors Guild v. Google,
Inc. regarding Google’s own use of digitized copyrighted works. Notably, the district court
opinion was written by Judge Denny Chin, who is now a judge for the Second Circuit which will
be deciding the appeal of the Google decision.76 Judge Chin retained the case after being
appointed to the appellate court.77 Before analyzing whether Google’s use of the full-digitized
texts was fair use, the court outlined several of the benefits it saw in the Google Books project.78
These benefits included: (1) providing a “searchable index” of words that has become an
indispensable part of education and research, (2) promoting “data mining” research that will
71 Id.
72 Id. at99-100.
73 Id. at100.
74 Id. at100-101.
75 Id. at101.
76 See Authors Guild v. Google, Inc.,954 F. Supp. 2d, 282, 294 (S.D.N.Y. 2013).
77 See Id.
78 Id. at287.

12. Kremer 12
allow researchers to study society’s use of certain words and phrases over time and, (3) the
heightened “knowledge of and access to far more books.”79
Analyzing the first fair use factor, the district court concluded Google’s use of the
digitized copyrighted texts in its search database is “highly transformative” because it allows
researchers to approach the expression of the text in different ways.80 In addition, the court
observed that because the Google snippets could not be manipulated by users to create entire
copies of the digital work, it could not supplant the original work.81 The court found Google’s
commercial motivations, providing innovative services so that users will be drawn to Google, to
be negligible given the database’s beneficial and educational uses.82
The court also found in favor of Google on the second factor, observing that most of the
books at issue were non-fiction (meriting less protection) and were published, which made them
available to the public.83 The court concluded the third factor also weighed in Google’s favor.84
Similar to HathiTrust, the Google decision observed that some fair uses can result in complete
copying of original works and in Google’s case was necessary to make its “snippet” results
effective.85 Moreover, users could not access more than the snippets.86 As a result, the court
believed Google did not use the copyrighted work in excess of what was appropriate.87
79 Id.
80 Id. at291.
81 Id.
82 Id. at292.
83 Id.at 293. In fact,93% of the works at issuewere non-fiction works. Id. at 285.
84 Id. at292.
85 Id. (citing Sony Corp. of Am. v. Universal City Studios,Inc.,464 U.S. 417 at 449-50 (1984); Bill GrahamArchives v.
DorlingKindersley,488 F.3d 605, 607, at 613 (2nd Cir.2006)).
86 Id.
87 Id.

13. Kremer 13
Finally, in analyzing the fourth factor, the court refused to find that Google’s service hurt
copyright owners economically.88 The court reasoned that because Google’s digital copies
cannot be accessed fully, they could not act as a market replacement for the original works.89 In
addition, the court believed the program would result in increased sales for the works used in the
search database.90 The court made no reference to the argument that copyright holders lost
licensing revenue from Google’s unauthorized use.91 Ultimately, the district court found in favor
of fair use.92 The case is currently on appeal with the Second Circuit.93
III. Discussion
There are major areas of concern in the HathiTrust and Google decisions’ analysis of fair
use as applied to full-text search databases. The first is that each court misinterpreted and
misapplied the Supreme Court’s standard as to what kinds of use should be considered
transformative. This largely results in an incorrect finding that the first factor favors both the
HathiTrust and Google, especially in light of the commercial impact of Google’s actions. The
second area of concern is that this incorrect finding of transformative use skews much of both
courts’ logic throughout the rest of their analysis, particularly when considering the second and
third factors. Finally, the findings that HathiTrust and Google’s use do not result in economic
harm recognized by and actionable under the Copyright Act is simply not correct. In spite of
these shortcomings, however, the Second Circuit is likely to re-assert such logic in the soon to be
decided Google appeal, likely cementing the ill-founded legality of Google and HathiTrust’s use
of unlicensed copies of copyrighted works. This will lessen the protection of an author’s right to
88 Id. at292-93.
89 Id.
90 Id.
91 See Id.
92 Id. at293-94.
93 Notice of Appeal. 1-2, Dec. 23,2013, ECF No. 1092.

14. Kremer 14
benefit from their works, decreasing some of the incentive for them to create more works that
can be consumed for public benefit.
A. The First Fair Use Factor
In both the HathiTrust and Google cases, each courts’ decision largely hinged on their
analysis of the first factor, “[t]he purpose and character of the use, including whether such use is
of a commercial nature or is for non-profit educational purposes[,]”94 and their incorrect
assertion that a transformative use had occurred in each case. There are major flaws in its
analysis, leading to the conclusion that the databases at issue in each case are simply not
transformative and that the first factor favors the Authors Guild. Transformative works must
either result in the creation of a “new work” that would not supplant the original, or add
“something new. . . with new expression.”95 Simply copying an original work by digitizing it,
as Google and the HathiTrust have done, fail to create a new work or new expression, and the
use of those copies within full-text search databases fails to alter that conclusion.
The greatest issue in these cases is the copying of works in a non-transformative manner
before they’re even used for full-text search databases.96 Putting copyrighted works in a digital
form so that they can be searched is simply putting the same work in a different form, and this
does not create a new work that is capable of satisfying Campbell’s transformative standard.97
This argument finds support in an earlier Second Circuit decision, American Geophysical Union
v. Texaco Inc. In that case, Texaco photocopied articles without permission in order to promote
94 17 USCS § 107(1) (LexisNexis 2014).
95 See Campbell v. Acuff-Rose Music,510 U.S. 569, 579 (1994). “The central purposeof this [transformative
inquiry] is to see. . . whether the new work merely ‘supercede[s] the objects’ of the original creation...
[transformativeworks] provide social benefit, by sheddinglighton an earlier work, and, in the process,creat[e] a
new one.”
96 See Raymond Nimmer, LAW OF COMPUTER TECHNOLOGY § 1:102 (2014).
97 Id.

15. Kremer 15
its research efforts.98 The court declared that putting copyrighted works into digital forms such
as a portable document format (PDF) is not transformative and provides little value that is not
already inherent in the original work.99 Furthermore, the court stated that even though original
works might be more useful for purposes such as research after being digitized, this does not
automatically sway the first fair use factor in favor of a copier.100 Assertions such as these were
made before the HathiTrust court,101 but were ignored entirely in favor of focusing on the use of
those digital scans for full-text search databases.
However, even coupling the digital copying with its purpose of creating a full-text search
database fails to make the databases transformative works that result in new expression. The fair
use doctrine is meant to protect uses including “criticism, comment, news reporting, teaching. . .
scholarship, or research. . .”102 While the uses provided in § 107 are not comprehensive, they are
illustrative of activities that constitute fair use.103 Such uses are going to result in the creation of
entirely new works including essays, news articles, and research papers. Each of these works, in
turn, must demonstrate their own original expression that the HDL and Google databases do not.
The facts of Campbell are illustrative of these objectives. 2 Live Crew’s song, as a parody of
Acuff Rose’s song, is an entirely new and copyrightable work with its own original expression.
The cases cited by the Second Circuit in HathiTrust to support its conclusion that the
HDL database is transformative, including Cariou v. Prince, Bill Graham Archives v. Dorling
98 Am. Geophysical Union v.Texaco Inc., 60 F.3d 913, 915 (2d Cir.1994).
99 Id. at923-24; See also Cambridge Univ. Press v. Patton, 2014 U.S. App. LEXIS 19978, at*78 (11th Cir.Oct. 17,
2014).
100 Id. at924.
101 Redacted Final FormReply Brief for Plaintiff-Appellantsat13,Authors Guild v. HathiTrust, 755 F.3d 87, 97 (2nd
Cir.2014) (No. 12-4547-CV).
102 17 USCS § 107 (LexisNexis 2014).
103 See H.R. Rep. No. 94-1476,at 65 (1976).

16. Kremer 16
Kidersley Ltd., and Leibovitz v. Paramount Pictures Corp.,104 actually further demonstrate how
the databases at are not transformative. In Cariou, the Second Circuit found that an artist’s use
of a photographer’s photograph to create new collages was fair use.105 In Bill Graham Archives,
a book publisher’s use of copyrighted photos within a band biography constituted fair use.106 In
Leibovitz, fair use was found where Paramount Pictures created an advertisement that used a
copyrighted photo, but with its own parodic expression.107 All of these cases involved the
creation of new works entirely with new expression: a new piece of artwork, a biographical
work, and an advertisement. Each of these works, in turn, had their own original expression and
purpose that are different from the original works they borrowed from. All the snippet and word
count search results of the Google and HathiTrust’s databases do is exactly what the Second
Circuit stated the HDL does not do: “merely repackage[ ]. . . the original[s] . . . or merely recast
an original work into a new mode of presentation.”108
The social benefits of these databases, such as “data mining” to track the development of
words, promoting knowledge of books, and using them for research, fails to alter this conclusion.
While the information provided by these databases might be harder or even impossible to
compile without them, all of the information contained within the search results of the HDL and
Google databases is already present within the books themselves. The fact that a secondary use
of original works can be of social benefit does not, by itself, make those secondary uses fair
104 Authors Guild v. HathiTrust, 755 F.3d 87, 97 (2nd Cir. 2014).
105 Cariou v. Prince,714 F.3d 694,712 (2nd Cir.2013).
106 Bill GrahamArchives v.DorlingKindersley,488 F.3d 605, 607,614 (2nd Cir.2006).
107 Leibovitz v. ParamountPictures Corp., 137 F.3d 109,110-111 (2nd Cir.1998).
108 See Authors Guild v. HathiTrust,755 F.3d 87, 97 (2nd Cir.2014) (internal quotations omitted). There have been
instances,such as in Sony,where the court found such non-transformativeuses to be fair use. See Sony Corp. of
Am. v. Universal City Studios,Inc.,464 U.S. 417, 455. However, Sony is clearly distinguishablefromthe copyingat
issuein HathiTrust and Google.

17. Kremer 17
use.109 Again, the search results merely repackage that information and present it in a way that is
much easier for users to digest. While the HathiTrust and Google databases are arguably more
broadly beneficial to the public than the works in Campbell, Cariou, Bill Graham Archives, and
Leibovitz, that hardly makes them more transformative.
Another fault in the HathiTrust and Google decisions’ analysis of the first factor is that in
considering whether the full-text search databases supplant original copyrighted works, each
court viewed how the public use original works too narrowly. Not all unauthorized copying and
use of copyrighted works can be labeled transformative, and thus excused as fair use, simply
because an author did not “write with the purpose of enabling” such use. An author might not
write or create with the purpose of enabling derivative works that bear little resemblance to the
original works, but this does not prevent an author from retaining the right to create derivative
works or license that right to others.110 Indeed, copyright holders can entirely prevent others
from making derivative works, regardless of whether or not the author wrote with the belief that
such works could be made.111
It is similarly narrow to rule that the Google Books “snippets” do not supplant the
original works because a user can only assemble less than ninety percent of a complete work.
The Google court failed to realize that books and other works of authorship are not always “read
cover to cover” but sometimes to merely obtain “a specific piece of information.”112 Another
Southern District of New York case, AP v. Meltwater, seizes upon this reality. In that case, the
109 See Am. Geophysical Union v.Texaco, Inc.,802 F. Supp. 1, 11 (S.D.N.Y. 1992), aff’d, 37 F.3d 881 (2d Cir.N.Y.,
1994),aff’d, 60 F.3d 913 (2d Cir.N.Y., 1994). This opinion was written by PierreLeval, who, as mentioned above,
greatly influenced the Campbell court’s standard for transformativeuses.
110 See 17 USCS § 106 (2). The ability to create derivativeworks also challenges the HathiTrust and Google courts’
analysisof the fourth factor.
111 See Id.
112 Redacted Final FormReply Brief for Plaintiff-Appellants,supra note 101, at 17.

18. Kremer 18
news aggregator Meltwater used a search engine to compile excerpts of news articles to its paid
subscribers.113 In doing so, Meltwater’s service copied 4.5% to 61% of the articles at issue in
that suit.114 Those portions of the articles, however, were catered to the subscriber’s keyword
search inquiry.115 As a result, users of Meltwater’s service only accessed the original articles
0.08% of the time.116 The Meltwater court used this information as part of its determination that
the service was not transformative.117 The Google Books service, much like the Meltwater
service, provides snippets catered to the users search inquiry. Those snippets are potentially
capable of providing all of the information that users need without having to manipulate the
system to assemble the entire original book.
The commercial aspects of Google’s copying, use, and distribution of copyrighted works
creates further concerns in an analysis of the first fair use factor. The Google decision admits
that Google benefits commercially from its unauthorized copying of works because users are
drawn to the website and its search engines, but casts this aside in light of the benefits of the
Google Books program.118 The court fails to realize that Google’s commercial benefit goes
beyond users coming to its websites. Google’s unlicensed use has driven competitors out of the
market, many of which had been abiding by copyright law and copying only works in the public
domain.119 Google also benefits because it essentially sells its unauthorized copies to libraries
for the right to access a plethora of copyrighted works on participating libraries’ shelves.120 In
113 AP v. Meltwater, 931 F. Supp. 2d 537,540 (S.D.N.Y. 2013).
114 Id. at558.
115 Id. at555.
116 Id.
117 Id.
118 Authors Guild v. Google, Inc., 954 F. Supp. 2d, 282, 291-292 (S.D.N.Y. 2013).
119 Darnton, supra note 1, at 17; See also Reply Brief for Plaintiffs-Appellants (Un-Sealed Redacted Version) at 7,
Authors Guild v. Google, (No. 13-4829-CV) (2nd Cir. scheduled for argument Dec. 3, 2014).
120 Reply Brief for Plaintiffs-Appellants,supra note 119, at 21-22.

19. Kremer 19
light of all of these considerations, it is clear that conclusion the first fair use factor favors
Google and the HathiTrust is incorrect.
B. The Second and Third Fair Use Factors
The HathiTrust and Google courts let their determinations that the databases are
transformative corrupt their analysis of the other fair use factors to the point that they do not give
the issues raised by them serious consideration. This is particularly evident in each courts’
analysis of the second and third fair use factors. Upon close examination, it is clear that the
“nature of the copyrighted work” (the second factor) and “the amount and substantiality of the
portion used in relation to the copyrighted work as a whole” (the third factor) create great
concerns that neither court addressed.
The second factor clearly favors the Authors Guild and copyright holders. Google’s
copying of entire works original expression and the use of them in search results infringe on the
rights of copyright holders, regardless of whether the snippets are from fiction or non-fiction
works. The Google court was correct in stating that non-fiction works merit less protection than
fictional works because the ideas conveyed in fictional works cannot be copyrighted. However,
the original expression of those ideas can be.121 As a result, Google’s copying of copyrighted
expression clearly demonstrates infringement. Furthermore, the court should not have dismissed
the fact that fictional works, which merit greater protection, are also copied without permission
by simply stating they make up only 7% of the works at issue. The fair use analysis should be
“determined on a case-by-case basis[ ] by applying the four factors to each work at issue.”122
This might have been impossible in the Google case, but even if the court had addressed the
121 See Baker v. Selden, 101 U.S. 99, 103-04 (1879).
122 See also CambridgeUniv.Press v. Patton, 2014 U.S. App. Lexis 19978,at *70 (11th Cir.Oct. 17, 2014).

20. Kremer 20
fictional works as a whole, it would have been equally difficult to find that the second factor
does not favor copyright holders. The HathiTrust court exerted less effort than the Google court
by entirely dismissing the second factor because of its conclusion that the databases are
transformative. While the second factor’s influence in the fair use analysis is supposed to be
limited, the HathiTrust decision made it essentially nonexistent.
Each court also failed to address concerns raised by the third factor which favor copyright
holders. The Google and HathiTrust courts correctly asserted that some instances of fair use
result in the copying of an entire work, but the cases they cite to, Sony and Bill Graham
Archives, are not analogous to the copying at issue here. While the copying in Sony was not
transformative and copied entire works, it was done for personal, in-home use. This largely
resulted in a finding of fair use. In turn, the copying in Bill Graham Archives was fair use
because it resulted in the creation of a new work where the original, although copied completely,
was only a small part. In contrast to these cases, however, the entire public has access to the
fruits of Google’s and HathiTrust’s copying which depend entirely on complete copies of
original works.
This issue of giving the other fair use factors less influence after a finding of
transformative use is not limited to the Second Circuit. Many courts are guilty of making the
transformative question a “conclusory label[ ]” in the fair use inquiry, where “not transformative
[is]. . . shorthand for not fair, and correlatively transformative for fair.”123 In a recent decision
regarding fair use, Kienitz v. Sconnie Nation LLC, Judge Easterbrook of the Seventh Circuit
criticized the Second Circuit’s decision in Cariou for effectively making the “transformative”
123 See 4 MelvilleB.Nimmer and David Nimmer, NIMMER ON COPYRIGHT § 13.05[1][b] (Matthew Bender, Rev. Ed.).
(internal quotations omitted) (citingSeltzer v. Green Day, Inc.,725 F.3d 1170,1176 (9th Cir.2013) (treatise
quoted).

21. Kremer 21
inquiry the sole inquiry of its fair use analysis and ignoring the other factors of § 107.124
Criticisms such as Easterbrook’s are perhaps overstated but not entirely unfounded in light of the
paltry discussion by the HathiTrust and Google decisions on the second and third fair use factors.
C. The Fourth Fair Use Factor
In addition to the shortcomings of the HathiTrust and Google decisions’ analysis of the
first three fair use factors, each decision fell short in analyzing the fourth fair use factor, “the
effect of the use upon the potential market for or value of the copyrighted work.” By asserting
that the databases do not result in any market injury, the Second Circuit and Southern District of
New York have significantly narrowed the standard of inquiry presented in § 107, Campbell, and
the Second Circuit’s own precedent. As a result, they failed to address the potentially serious
market harm that is resulting from Google and HathiTrust’s use of unauthorized copies in
services like full-text search databases.
In HathiTrust, the Second Circuit failed to identify the appropriate scope of its inquiry
when it declared that the HDL database does not injure the “potential traditional market[s]”for
original copyrighted works because the database cannot be used by the public to read
copyrighted works, their traditional market and use.125 The fourth factor of § 107 makes no
reference to “traditional markets.”126 Campbell, in turn, declared that courts must look to the
impact of the infringing activity on the “‘potential market’ of the original[,]” as well as the
impact on the demand for derivative works.127 In Texaco, the Second Circuit asserted that
market harm, including the loss of licensing fees for copyrighted works, must be assessed by
124 Kienitzv. SconnieNation LLC, 766 F.3d 756, 760 (7th Cir. 2014).
125 Authors Guild v. HathiTrust, 755 F.3d 87, 100 (2nd Cir.2014) (emphasis added).
126 17 U.S.C.S. § 107(4) (LexisNexis 2014).
127 Campbell v. Acuff-Rose Music,510 U.S. 569,580 (U.S. 1994) (emphasis added).

22. Kremer 22
“considering only traditional, reasonable, or likely to be developed markets[.]”128 Without such
a standard, the Texaco court asserted, every secondary use of a copyrighted work, transformative
or not, represents a potential financial loss for the copyright holder.129
Section 107, Campbell, and previous decisions of the Second Circuit, unlike the
HathiTrust court, recognize that a copyrighted work’s value does not lie solely in “traditional”
uses of them. Copyrighted works can demonstrate further potential value outside of these
traditional uses, such as cover-to-cover reading and study, that copyright owners should be able
to capitalize on. Furthermore, the Second Circuit ignored that the Copyright Act gives authors
the right to create and license derivative works that can look entirely different from the original
works they created and serve different market purposes.130 The Seventh Circuit has criticized the
Second Circuit for not considering facts such as these.131 Regardless of whether an author
envisioned perhaps untraditional derivative uses for an original work, an author still retains the
exclusive right to make or license them.
Beyond the ability of copyright owners to license and make derivative works, the Second
Circuit’s logic demonstrates an unwillingness to allow a copyright holder’s rights to advance as
society continues to develop at an exponential pace technologically. The amount of works that
are being “born” and sold digitally are now beginning to outnumber works being sold in paper
formats on websites like Amazon.132 As a result, the way people digest information is changing.
People can now analyze and manipulate information in ways that were inconceivable fifty or
128 Am. Geophysical Union v.Texaco Inc., 60 F.3d 913, 930 (2d Cir.1994). The argument can also bemade that this
standard setby the Second Circuitin Texaco unjustifiably narrows theoriginal standard setby § 107 and Campbell.
129 See Id.; See also Bill GrahamArchives v.DorlingKindersley Ltd., 448 F. 3d 605, 615.
130 See USCS 17 § 106 (2).
131 Kienitzv. SconnieNation LLC, 766 F.3d 756, 760 (7th Cir. 2014).
132 See United States Copyright Office,Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion
Document, appendix C, pg. 1 (Oct. 2011).

23. Kremer 23
even fifteen years ago. This gives a copyright holder’s work much more potential than has
traditionally been recognized.133 Courts cannot pigeonhole the value of a copyright holder’s
work to the most traditional of markets while allowing the fair use defense to outpace it. Section
107 allows the court’s conception of fair use to grow as time goes on and new technologies are
developed,134 but this should not prevent copyright holders from capitalizing on new uses for his
or her works. Just as §107 and Campbell recognize, original works must also be able to
demonstrate further market potential in light of technological advances.
The Google decision is also suspect in its analysis of the fourth factor because it failed to
address the real market harm being done by Google’s non-transformative digital copies. These
copies, even before their use in its database, serve as a market replacement for use in full-text
search engines or other digital services. As a result, Google’s use of copyrighted works in its
services without a license causes great market harm to copyright holders. The Google decision
makes no reference to lost licensing fees,135 despite the fact that such lost fees are often the focus
of the fourth fair use factor.
This market harm is compounded by the fact that Google has essentially beaten out all
serious competition in this area. There are other organizations in the U.S., including the Library
of Congress, that have their own digitization projects.136 Many of these are distinguishable from
Google, however, in that their digitization efforts involve only public domain works.137 These
efforts, with the right partners, could have grown into a “National Digital Library,” while
133 Of course,this is not to say that society under-values copyrighted works.
134 H.R. Rep. No. 94-1476,at66 (1976).
135 See Authors Guild v. Google, Inc.,954 F. Supp. 2d, 282, 292-293 (S.D.N.Y. 2013).
136 See United States Copyright Office,supra note 132,app. C. at1.
137 See Id. Other digitization efforts’attempt to stay away from copyrighted books could serve as indirectevidence
that there is a market for copyrighted books to be used in those efforts and that organizations werenot willingto
pay the pricefor them.

24. Kremer 24
“provid[ing] authors and publishers. . . legitimate income.”138 Yet, while other organizations
toed the line, Google dived into the digitization effort, endeavoring to scan first and ask
questions later. The effect of this is that Google has effectively prevented a new market for the
original works from being realized.139 Other competitors, including Microsoft, have either
abandoned their digitization efforts in light of Google’s progress or operate far less efficiently.140
At this stage, no one can catch up. Google is adding insult to injury by trading digital copies to
participating organizations like the HathiTrust for access to more books.141
Furthermore, the Google court’s conclusion that the Google Books program helps
copyright owners sell their works, and that copyright owners thus have no reason to complain
about Google’s use, is unwarranted. It should be the right of copyright holders, not third parties
such as Google, to decide how their works should be marketed.142 In addition, the Google court
presents no hard evidence to support its conclusion that the database increases book sales.143
Instead of relying on assumptive conclusions, the district court should have forced Google to
demonstrate in its defense that its services resulted in users buying the original works. The
Southern District of New York demonstrated this tendency before in Meltwater, which made
extensive reference to data illustrating how often the news aggregator’s services led to users
138 Darnton, supra note 1, at 16-17.
139 Reply Brief for Plaintiffs-Appellants,supra note 119, at 7.
140 Darnton, supra note 1, at 17; See also Id. at 7.
141 Authors Guild v. Google, Inc., 954 F. Supp. 2d, 282, 287 (S.D.N.Y. 2013).
142 BMG Music v. Gonzalez, 430 F.3d 888, 891 (7th Cir.2005). “Copyright lawlets authors make their own decisions
about how best to promote their works; copiers.. . cannot ask courts (and juries) to second-guess the market and
call wholesalecopying‘fair use’if they think that the authors err in understandingtheir own economic interests or
that Congress erred in grantingauthors the right in the copyrightstatute”.
143 Google, 954 F. Supp. 2d at 292-293.

25. Kremer 25
accessing the original works.144 In light of these considerations, it is very difficult to find that
the fourth factor does not favor copyright holders.
D. The Second Circuit’s Upcoming Decision in Google and Its Potential Implications
The Second Circuit’s upcoming decision in Google presents different facts from that of
HathiTrust in terms of each organization’s text-search databases. Unlike the HDL database
results, the results of Google’s search engines display “snippets” of the copyrighted works.
Other differences that distinguish the Google case from the HathiTrust case are Google’s status
as a for-profit entity and the source of the scanned copies at issue in both cases. Yet, because of
the precedent set by HathiTrust, it appears likely that the court will decide in favor of Google.
Much of the logic used by the Second Circuit in HathiTrust can make a seamless
transition to the facts of the Google decision. For example, Google’s search engine, like the
HDL, operates as a full-text search, a function the Second Circuit found highly transformative
that does not supplant the original work. Assuming the Google text search function is found to
be transformative, the Second Circuit will likely use that conclusion to easily dispatch the second
and third factors, just as it did in HathiTrust. Finally, the court will not consider the lost
licensing fees that result from Google’s copying because full-text search databases, just like in
HathiTrust, will not be viewed as a “traditional” market for books.
Perhaps the most influential reason why the Second Circuit will rule in favor of Google is
that Google provides the digital copies that resulted in the fair use finding in HathiTrust; if the
court were to decide against Google in the Google appeal, that decision would undermine the
court’s fair use rationale in HathiTrust and the social benefits it lauded. The Second Circuit will
144 AP v. Meltwater, 931 F. Supp. 2d 537,555 (S.D.N.Y. 2013).

26. Kremer 26
likely not let itself be considered a villain that takes away the tools it believes research and
educational institutions have become dependent on. As a result, the Second Circuit will continue
to let these infringing databases exist under the guise of fair use.
There will be consequences to the success of the Google Books project that neither of
these decisions bothered to recognize. In its report “Legal Issues in Mass Digitization,” the
Copyright Office mused over the question of whether the digitization of copyrighted works, and
the issues presented by it, merited the attention of Congress in the form of new legislation, or
“left to the marketplace and. . . copyright law as it currently exists[.]”145 As it played out in the
HathiTrust and Google decisions, the courts have let Google alone decide how copyright law
should apply to the digitization of copyrighted works. Google and its partners jumped right into
its digitization efforts, and now no one can stand up to Google.
As high as the stakes were in the HathiTrust decision, the Second Circuit’s upcoming
decision in Google could have even greater implications on the future of copyrights and access to
information. Should Google’s copying and use of digitized works pass the scrutiny of the
Second Circuit, the corporate behemoth could become the “sole gatekeeper” of the “fruits of
digitization.”146 There is great risk to this. Not only is Google in a position to create a
“monopoly” on information by putting what it wants in its database,147 there is nothing to prevent
Google from taking away that database and to stop supplying digital copies to other
organizations like the HathiTrust. As Darton observed, “Google defines its mission as the
communication of information – right now, today[,]” but that does not mean it will always do
145 See United States Copyright Office,supra note 132,app. C. at 15-16.
146 See Nimmer, supra note 58, at § 20.03[4].
147 Darnton, supra note 1, at 17.

27. Kremer 27
so.148 In the end, there is nothing to ensure the continued existence of the public benefits the
courts see in the HDL and Google databases.
IV. Conclusion
While the some of the goals of Google and the HathiTrust might be admirable, the means
by which they are accomplishing those goals are inconsistent with the rights of copyright holders
and the fair use doctrine. Google’s copying of copyrighted works and their subsequent use in
both Google and the HathiTrust’s full-text search databases simply cannot be considered fair use.
Neither the copying of copyrighted works into digital formats, nor the search results of each
database result in the creation of transformative works that have their own original expression.
In the end, each database only repackages the text that is already in the original works, regardless
of whether such text or the information derived from it was difficult or impossible to obtain. As
a result, the copying and the databases that contain the copies cannot be considered
transformative because they supplant the original works. The social benefits of the databases fail
to alter this conclusion.
The HathiTrust and Google court’s fixation on the first factor and the transformative
inquiry came at the expense of not giving the other fair use factors, especially the second and
third, adequate consideration. The Google court failed to consider how the verbatim copying of
original expression, in both fictional and non-fiction works, should sway the second factor in
favor of copyright holders. The HathiTrust court, in turn, essentially dismissed the second factor
altogether in light of its finding of transformative use. In addition, neither decision effectively
harmonized the copying of entire works with the third factor. While cases do exist to support the
148 Id. at23.

28. Kremer 28
conclusion that entire works can be copied and still result in a finding of fair use, those cases
bear little similarity to the copying at issue here.
Each court also failed to adopt the appropriate scope of inquiry when considering the
market harm caused by Google and the HathiTrust’s activities. Courts cannot limit the uses of
an original work to traditional cover-to-cover reading when technological advances and market
demands are creating new and innovative ways for copyright owners to capitalize on the creative
expression contained in their works. Google has effectively driven most of its competitors out of
the full-text search market before that market had a chance to develop. This leaves Google and
its partners as the sole beneficiaries of its unlicensed copying and use of copyrighted works.
In spite of all of these issues that are in conflict with U.S. Copyright law, it seems
unlikely that the Second Circuit will reverse course in its upcoming Google decision. It will
likely affirm the district court’s finding that the Google Books database is an example of fair use.
To hold otherwise would be to halt the development and continued use of a research tools that
the court views as becoming increasingly used and depended upon by society. In addition,
striking down Google’s use of the copies in its digital database would undermine its decision to
uphold the HathiTrust’s database. In the event the Second Circuit does ultimately affirm the
decision, Google and the HathiTrust will be able to continue to monopolize the digitization
market and violate the rights of copyright holders.