Nature of the Case
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Facts
Acting without permission of rights holders, D has made digital copies of tens of millions of books. D has scanned the digital copies and established a publicly available search function. D makes a digital scan of each book, extracts a machine-readable text, and creates an index of the machine-readable text of each book. D retains the original scanned image of each book, in part so as to improve the accuracy of the machine-readable texts and indices as image-to-text conversion technologies improve. An Internet user can use the search function to search without charge to determine whether the book contains a specified word or term and also see 'snippets' of text containing the searched-for terms. D has allowed the participating libraries to download and retain digital copies of the books they submit, under agreements which commit the libraries not to use their digital copies in violation of the copyright laws. The vast majority of the books are non-fiction, and most are out of print. All of the digital information created by D in the process is stored on servers protected by the same security systems Google uses to shield its own confidential information. No advertising is displayed to a user of the search function. Nor does d receive payment by reason of the searcher's use of D's link to purchase the book. The search engine also makes possible new forms of research, known as 'text mining' and 'data mining.' Ps brought a putative class action on behalf of similarly situated, rights-owning authors. D pled 'fair use.' The district court agreed and granted D a summary judgment. The Court found that D's uses were transformative, that its display of copyrighted material was properly limited, and that the Google Books program did not impermissibly serve as a market substitute for the original works. Ps appealed.
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