Google Books: Court’s Conflation Creates Confusion
Since the 1990 publication of the Hon. Pierre Leval’s article "Toward a Fair Use Standard,"1 the statutory doctrine of fair use has undergone significant transformation. In his article, Judge Leval opined that the critical inquiry for determining fair use turned on "whether, and to what extent, the challenged use is transformative."2 Judge Leval posited that in order to meet the fair use standard, the secondary use "must be productive and must employ the quoted matter in a different manner or for a different purpose from the original."3 While this language would appear to place limits on what constitutes fair use, in actual fact these limitations have proven difficult to define.
Judge Leval’s article was cited by the Supreme Court in Campbell v. Acuff-Rose Music, Inc.,4 proposing that a secondary use must generally be transformative in order to constitute a fair use; i.e., that it must add "something new…with a further purpose or different character, altering the first with new expression, meaning or message."5 After Campbell, the "transformative use" test has become the sine qua non for fair use. If the court finds that the use is not transformative, then the secondary use constitutes an infringement. Alternatively, if a court finds the secondary use to be transformative, the secondary use constitutes a fair use.6 Most recently, in The Authors Guild, Inc. v. Google, Inc.7 ("Google Books"), the Second Circuit, in an opinion authored by Judge Leval himself, put the book-end on the transformative use test by finding that an author’s entire work can be copied verbatim under the fair use doctrine, if the copying is for a transformative purpose that benefits societal interests.