The US Supreme Court (the highest federal court in the US) has declined to hear an appeal from a Court of Appeal decision affirming a federal District Court finding that Google's scanning of books without permission for its "Google Books Project" was "fair use" under US law

The Supreme Court's decision not to hear the appeal ends the case, which was instituted in September 2005 by the US Authors Guild, concerned that Google's use of copyright books to create a searchable database without permission infringed authors' rights

The reasoning of the judge at first instance (who found in favour of Google) included that Google was preserving books and giving them new life and readers, while the Court of Appeal (which affirmed that decision) found that the snippets Google made available to the public from the scanned archive were not a viable substitute for the books themselves and that therefore could be "fair use"

In the application to the Supreme Court to hear the appeal, the Authors Guild argued (among other things) that:

  • Google's use of books was not transformative (an important consideration in making a "fair use" assessment under US law);
  • Google's use of books was primarily commercial (a factor that should weigh against a finding of "fair use"); and
  • the various archives of scanned books held by Google and by the libraries that supplied Google with copies of the books would likely operate as a target for hackers.

It should be noted that the Supreme Court receives thousands of applications each year to hear appeals, and only accepts a small percentage of those applications (about 5%). The cases heard by the Supreme Court typically involve important and unsettled areas of law and, in refusing the application, the Supreme Court may well be signalling that it does not believe that this particular issue is unsettled, even though different "circuits" within the federal system in the US take different views on what can constitute "transformative" use and how much emphasis one should place on "transformative use" in making a "fair use" analysis

While interesting in itself, the case is also of interest to Australian authors and publishers in that one of the recurrent motifs in Australian copyright policy reviews is whether or not Australia should introduced an open "fair use" exception such as applies in the US

The "petition" of the Authors Guild to the Supreme Court is available at: The decision of the Second Circuit Court of Appeal is available via: If you need advice on copyright issues (including on infringements), contact copyright lawyer Adam Simpson and Ian McDonald (Special Counsel) at Simpsons Solicitors.