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the images was “significantly transformative” [38]. Kelly's original images were artistic
creations designed to provide the viewer with an aesthetic experience. Arriba Soft's use
of the thumbnails was to create a searchable index that would make it easier for people
to find images on the Internet. The thumbnail images had such low resolution that
enlarging them resulted in a blurry image with little aesthetic appeal. Second, Arriba
Soft's use of Kelly's images did not harm the value of the original images or the market
for these images. If anything, the search engine's display of Kelly's images “would guide
users to Kelly's web site rather than away from it,” increasing the demand for his photo-
graphs [38].
In December 2004, Google announced a plan to scan millions of books held by Harvard
University, the University of Michigan, the New York Public Library, Oxford University,
and Stanford University, creating a database containing the words contained in all of
these books [39]. This database is much more powerful than traditional library card
catalogs because it allows users to search for words or phrases appearing anywhere in
the cataloged books. The system responds to a user query by returning the topics that
match the query most closely. If the topic is in the public domain, the user can view and
download a PDF file containing the scanned images of the topic's pages. If the topic is
still under copyright, the user can see a few sentences from the topic that show the search
term in context, and the search engine provides links to libraries holding the topic and
online bookstores selling the topic.
In September 2005, the Authors Guild filed a lawsuit in the US District Court for
the Southern District of New York, claiming that “by reproducing for itself a copy of
those works that are not in the public domain, Google is engaging in massive copyright
infringement” [40]. A month later a group of five major publishers sued Google for
copyright infringement. The publishers claimed that Google was infringing their rights
under the Copyright Act because Google's intent was “purely commercial,” and in order
to create its database, Google was systematically copying entire books still protected by
copyright [41].
Three years later Google reached an out-of-court settlement with the Authors Guild
and the Association of American Publishers. A joint public FAQ from the Authors Guild,
the Association of American Publishers, and Google stated that the agreement would
enable them “to do more together than copyright owners or Google could have done
alone or through a court ruling” [42]. According to the three parties, the settlement
would result in five important benefits:
1. Readers in the United States would have much easier access to millions of copy-
righted books, including millions of books that are out of print, by allowing readers
to search through them and preview them online.
2. The market for copyrighted books in the United States would grow by offering
Google Books users the opportunity to purchase online access to them.
3. People would gain online access to out-of-print books at designated computers in
US public libraries and university libraries.
