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Abstract

The Digital Age has enabled individuals worldwide to store, organize, and share everything from cherished memories embodied in photographs and videos to academic writing and correspondence. Yet, archived collections of academic, public, and private libraries are out of reach to many, and many books are now beyond reach because they are no longer in print. The high cost of digitization exacerbates these challenges.

In 2004, Google Inc. responded to these issues by announcing a project to scan and digitize the collections of several leading universities and public libraries (the “Google Books” project). The project offered users the opportunity to search the entire corpus of scanned works. For works still under copyright, users could view only snippets sufficient to give them a taste of the complete work; users interested in accessing the full text could, however, buy the books from the publisher directly through links that the system provides.

Several authors and publishers filed suit in the Southern District of New York, arguing that the Google Books project infringed their copyrights in their works. The district court held that allowing users to search unauthorized digital copies of the works and see snippets from those works was noninfringing fair use. The Second Circuit affirmed. The courts reasoned that the purpose of the copying was highly transformative, the public display of text was limited, and the project did not provide a significant market substitute for the protected aspects of the original works.

This article explores the effects of these decisions, arguing that the fair use holding played a major role in facilitating the creation of markets for archiving copyrighted works. This market facilitation role is atypical of the fair use defense’s usual role and arguably fails fully to account for the effect that the use could have upon the potential market for—or value of—the copyrighted work. This article will explore the fair use defense’s unexpected market facilitation role and suggest that it should be carefully considered by courts, especially in light of the rationales underlying the fair use defense, which focus mainly on market failure and freedom of speech.

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