On Oct. 16, in Authors Guild v. Google,1 the U. S. Court of Appeals for the Second Circuit affirmed the holding of U.S. District Judge Denny Chin2 (sitting as a district court judge) that Google’s mass digitization of more than 20 million books from major university libraries in order to enable users of the Google Books website (a) to conduct full-text searches to determine the appearance and frequency of particular words in the books contained in the entire database, and (b) to view “snippets” from the books subject to existing limitations on their display, constitutes fair use. In a 48-page opinion by Judge Pierre N. Leval, joined by Judges Jose Cabranes and Barrington D. Parker, the court conducted a thorough review of fair use from its English precedents to the last three decades of Supreme Court fair use cases and their application to the digital age.

What emerges from this scholarly journey is the court’s conclusion that the research uses enabled by Google Books serve copyright’s ultimate goal to advance knowledge and learning, and are circumscribed so as to avoid market harm to plaintiffs. But equally important, the court emphasized throughout the opinion that its analysis was based strictly on its detailed exposition of the facts and circumstances of record, implying that broader uses would be subject to careful scrutiny under each of the fair use factors and their overall balance.

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