Is Fair Use Fair? Analyzing the Defense of Fair Use in a Copyright Infringement Case

“Fair use” is a defense to a claim of copyright infringement codified in 17 U.S.C. § 107. Courts have struggled to create uniform interpretations of the law of fair use, and because of this, claims of fair use being unfair abound. Even though interpretations vary, it is important for students to understand and be able to analyze the fair use defense. This critical incident, based upon the case of Authors Guild v. Google, Inc. (804 F.3d 202 [2nd Cir. 2015]), provides an example of its use. A dispute arose when Google, Inc. digitally scanned more than 20 million books under agreements with several major libraries, but without the permissions of the associated copyright holders. Google then established a publicly available search engine making “snippets” (a horizontal segment usually containing about an eighth of a page highlighting the searched term) from the digitized, copyrighted copies available without charge to users. A copyright infringement lawsuit was filed against Google. Google asserted fair use in its defense. In this critical incident, students are asked to draw on the facts and arguments asserted in the suit against Google to both critique the rationales for copyright law and analyze and assess the elements of copyright infringement and the fair use defense.