Page:Authors Guild v. Google (2015).pdf/26

 Book program provides, the snippet function docs not provide searchers with any meaningful experience of the expressive content of the book. Its purpose is not to communicate copyrighted expression, but rather, by revealing to the searcher a tiny segment surrounding the searched term, to give some minimal contextual information to help the searcher learn whether the book’s use of that term will be of interest to her. The segments taken from copyrighted music as ringtones, in contrast, are selected precisely because they play the most famous, beloved passages of the particular piece—the expressive content that members of the public want to hear when their phone rings. The value of the ringtone to the purchaser is not that it provides information but that it provides a mini-performance of the most appealing segment of the author’s expressive content. There is no reason to think the courts in the cited cases would have come to the same conclusion if the service being provided by the secondary user had been simply to identify to a subscriber in what key a selected composition was written, the year it was written, or the name of the composer. These cases, and the existence of unpaid licensing schemes for substantial viewing of digitized works, do not support Plaintiffs’ derivative works argument.

Plaintiffs argue that Google’s storage of its digitized copies of Plaintiffs’ books exposes them to the risk that hackers might pain access and make the books widely available, thus destroying the value of their copyrights. Unlike the Plaintiffs’ argument just considered based on a supposed derivative right to supply information about their books, this claim has a reasonable theoretical basis. If, in the course of making an arguable fair use of a copyrighted work, a secondary user unreasonably exposed the rights holder to destruction of the value of the copyright resulting from the public’s opportunity to employ the secondary use as a substitute for purchase of the original (even though this was not the intent of the secondary user), this might well furnish a substantial rebuttal to the secondary user’s claim of fair use. For this reason, the Arriba Soft and Perfect 10 courts, in upholding the secondary user’s claim of fair use, observed that thumbnail images, which transformatively provided an Internet pathway to the original images, were of sufficiently low resolution that they were not usable as effective substitutes for the originals. Arriba Soft, 336 F.3d 811, at 819; Perfect 10, 508 F.3d at 1165.

While Plaintiffs’ claim is theoretically sound, it is not supported by the evidence. In HathiTrust, we faced substantially the same exposure-to-piracy argument. The record in HathiTrust, however, “document[ed] the extensive security measures [the secondary user] ha[d] undertaken to safeguard against the risk of a data breach,” evidence which was unrebutted. 755 F.8d at 100. The HathiTrust court thus found “no basis … on which to conclude that a security breach is likely to occur, much less one that would result in the public release of the specific copyrighted works belonging to any of the plaintiffs in this ease.” Id. at 100–101 (citing Clapper v. Amnesty Int’l USA, U.S., 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2018) (finding that risk of future harm must he “certainly impending,” rather than merely “conjectural” or “hypothetical,” to constitute a cognizable injury-in-fact), and Sony Corp., 464 U.S. at 453–454, 104 S.Ct. 774 (concluding that time-shifting using a Betamax is fair use because the copyright owners’ “prediction that live television or movie audiences will decrease” was merely “speculative”)).