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Fair Use Meets Technology 485
online browsing in general and Google Books in particular helps readers find their work,
thus increasing their audiences. Further, Google provides convenient links to booksellers
to make it easy for a reader to order a book. In this day and age of on-line shopping, there
can be no doubt but that Google Books improves books sales.
Hence, I conclude that the fourth factor weighs strongly in favor of a finding of
fair use.
5. Overall Assessment
Finally, the various non-exclusive statutory factors are to be weighed together, along
with any other relevant considerations, in light of the purposes of the copyright laws.
In my view, Google Books provides significant public benefits. It advances the
progress of the arts and sciences, while maintaining respectful consideration for the rights
of authors and other creative individuals, and without adversely impacting the rights of
copyright holders. It has become an invaluable research tool that permits students,
teachers, librarians, and others to more efficiently identify and locate books. It has given
scholars the ability, for the first time, to conduct full-text searches of tens of millions of
books. It preserves books, in particular out-of-print and old books that have been forgotten
in the bowels of libraries, and it gives them new life. It facilitates access to books for printdisabled
and remote or underserved populations. It generates new audiences and creates
new sources of income for authors and publishers. Indeed, all society benefits.
• • • • • • • • • •
Note on Transformative Use: As you have seen, “transformative use” has been very
important in recent cases. From its original role in Acuff-Rose and SunTrust where it
protects parodic transformation, it has come to be used by courts dealing with the
interaction between copyright and technology—particularly in the search engine cases
and in the Google Books case. Here the “transformation” is of a different kind.
How broadly can this concept be developed? In the 2013 case of Cariou v. Prince
714 F.3d 694 (2d Cir. 2013), the Second Circuit espoused an especially broad
interpretation of “transformative” use. Patrick Cariou had published a book of photographs
taken while living among Rastafarians in Jamaica called “Yes Rasta.” Richard
Prince—a famous appropriation artist—incorporated Cariou’s photographs (sometimes
in their entirety, sometimes using headshots or other cutouts) into thirty artworks at issue
in the case. The district court had ruled for Cariou, finding that Prince’s work was not
transformative as a whole because “Prince did not intend to comment on Cariou, on
Cariou’s Photos, or on aspects of popular culture closely associated with Cariou.” The
Second Circuit disagreed on two grounds. First, it held that, to constitute fair use, a work
need not provide such commentary: “The law imposes no requirement that a work
comment on the original or its author in order to be considered transformative, and a
secondary work may constitute a fair use even if it serves some purpose other than those
(criticism, comment, news reporting, teaching, scholarship, and research) identified in
the preamble to the statute.” It was sufficient that a work “alter the original with ‘new
expression, meaning, or message.’” Second, the court applied an objective test for
assessing whether a work was transformative, focusing on how the work may
“reasonably be perceived” rather than on the defendant’s subjective intent. Accordingly,
Prince’s deposition testimony that he was not “trying to create anything with a new
meaning or a new message” and did not “have any . . . interest in [Mr. Cariou’s] original
intent” was beside the point. Applying these standards, the court concluded that twenty-