term is discussed in a manner or context falling within the scope of the searcher’s interest. For example, a searcher seeking books that explore Einstein’s theories, who finds that a particular book includes 39 usages of “Einstein,” will nonetheless conclude she can skip that book if the snippets reveal that the book speaks of “Einstein” because that is the name of the author’s cat. In contrast, the snippet will tell the searcher that this is a book she needs to obtain if the snippet shows that the author is engaging with Einstein’s theories.
Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs’ books, which we discuss under factors three and four below).
(4) Google’s Commercial Motivation. Plaintiffs also contend that Google’s commercial motivation weighs in their favor under the first factor. Google’s commercial motivation distinguishes this case from HathiTrust, as the defendant in that case was a non-profit entity founded by, and acting as the representative of, libraries. Although Google has no revenues flowing directly from its operation of the Google Books functions, Plaintiffs stress that Google is profit-motivated and seeks to use its dominance of book search to fortify its overall dominance of the Internet search market, and that thereby Google indirectly reaps profits from the Google Books functions.
For these arguments Plaintiffs rely primarily on two sources. First is Congress’s specification in spelling out the first fair use factor in the text of § 107 that consideration of the “purpose and character of the [secondary] use” should “include[e] whether such use is of a commercial nature or is for nonprofit educational purposes.” Second is the Supreme Court’s assertion in dictum in Sony Corporation of America v. Universal City Studios, Inc., that “every commercial use of copyrighted material is presumptively … unfair.” 464 U.S. 417, 451, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). If that were the extent of precedential authority on the relevance of commercial motivation, Plaintiffs’ arguments would muster impressive support. However, while the commercial motivation of the secondary use can undoubtedly weigh against a finding of fair use in some circumstances, the Supreme Court, our court, and others have eventually recognized that the Sony dictum was enormously overstated.[1]
The Sixth Circuit took the Sony dictum at its word in Acuff-Rose Music, Inc. v Campbell, concluding that, because the defendant rap music group’s spoof of the plaintiffs ballad was done for profit, it could not be fair use. 972 F.2d 1429, 1436–1437 (6th Cir.1992). The Supreme
- ↑ Campbell, 510 U.S. at 583–84, 114 S.Ct. 1164; Cariou v. Prince, 714 F.3d 694, 708 (2d Cir.2013), cert. denied, U.S. , 134 S.Ct. 618, 187 L.Ed.2d 411 (2013); Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 141–42 (2d Cir.1998); Perfect 10, Inc. v. Amazon.com, Inc., 308 F.3d 1146, 1165 (9th Cir.2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 819 (9th Cir.2003); see also Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1172 (9th Cir.2012) (noting that Campbell “debunked the notion that Sony called for a ‘hard evidentiary presumption’ that commercial use is presumptively unfair.”).
