Google has been making digital copies of millions of books through its Library Project without the consent of copyright holders. It has used these digital copies to establish a search function on its website so that the public is able to get access to these books on a limited basis. To be more specific, a user can search a term in a digital book. The user is also able to see snippets of text containing the search term. However, the user cant see the entire book through the digital copy. Participating libraries can obtain digital copies of books from Google, but under their agreements with Google they can’t use these digital copies in violation of the copyright laws.

Several copyright holders were unhappy about what Google did and brought a class action suit (Authors Gild v. Google, Inc.) in federal courts accusing Google for copyright infringement. Several main arguments were raised by plaintiffs against Google in the proceedings. Some key points among them are listed below. First, even though no fee was charged and no commercial was popped up during a search, Google’s act of making digital copies of copyrighted books was not a fair use because it helped Google to dominate the internet search market and ultimately would generate profit for the internet giant. Second, there was a possibility that Googles storage of digital copies might be hacked and subsequently exposed to the public. Third, copyright holders had a risk of loss of copyright revenue due to Googles distribution of digital copies to participant libraries, which might use these copies in an infringing manner.

The Courts disagreed with plaintiffs and ruled for Google. After making a detailed analysis and concluding that Google’s book scanning was not a substitute of the original publication but an allowable transformative use, the court rejected the argument of commercial motivation by stating that nearly all of the illustrative uses listed in the Copyright Act are generally conducted for profit. The Courts admitted that plaintiffs had a reasonable ground to challenge Google for the exposure of digital copies to the public due to hacking or unauthorized release. However, no evidence was presented by plaintiffs to show that this type of exposure actually happened.

While the traditional media is greatly challenged by the Internet and digitalization, the doctrine of fair use is still applied to digital works. As shown by Google in this case, a massive unauthorized duplication of copyrighted works does not necessarily lead to infringement. The purpose of copying and the way how the duplicate is used and presented remain to carry a big weight for court’s judgment on fair use. However, data compromise caused by hacking has recently become a major concern in eCommerce. As pointed out by the judge, divulging of digital copies due to poor measures on data security, even unintentional, may turn a lawful use into an infringement.