Google, Publishers, Copies and "Being Evil"

Andrew Raff
September 21, 2005

The Author's Guild filed a lawsuit to prohibit Google from scanning copyrighted books without obtaining permissions from the copyright owners. The complaint in The Author's Guild v. Google Inc, alleges "Google has reproduced a digital copy of the Works without the copyright holders' permission and in violation of the authors' rights under the copyright laws."

On its corporate blog, Google comments: Google Print and the Authors Guild: "Google doesn’t show even a single page to users who find copyrighted books through this program (unless the copyright holder gives us permission to show more). At most we show only a brief snippet of text where their search term appears, along with basic bibliographic information and several links to online booksellers and libraries."

Google does not yet make the full text of these scanned books available to the public, even if it has copied the full text of the book.

Jason Schultz examines the rhetoric behind the complaint: Another inept physical property analogy re: Google's digital library program: "So far, however, none of the publishers can show a single shred of evidence that the Google search index will reduce their sales. If anything, Google has already made the case that it will increase sales. At any rate, the physical property analogy to breaking into someone's home is deeply flawed and misplaced, and publishers are doing a vast disservice to their industry and their authors by continuing to disseminate such flawed rhetoric."

The New York Times notes that not all rightsholders are opposed to the project: Writers Sue Google, Accusing It of Copyright Violation: "Some aspects of the Google Print program have encountered relatively little opposition, particularly one that invites publishers to submit their books to Google for scanning and inclusion in the Google search engine. Most of the large commercial publishing houses have submitted books to Google for scanning, in the hope that the program will lead users to find and buy their books more easily."

Wired's coverage looks at two arguments, the publishers' have the choice to withold consent and that high transaction costs could stifle a project with immense public benefit: Google Takes On Copyright Laws:

But many publishers' remain wary. To endorse Google's library initiative is to say 'it's OK to break into my house because you're going to clean my kitchen,' said Sally Morris, chief executive of the U.K.-based Association of Learned and Professional Society Publishers. 'Just because you do something that's not harmful or (is) beneficial doesn't make it legal.'

Many of the titles Google wants to scan are out of print and belong to no publisher at all. Jim Gerber, Google's director of content partnerships, says the company would get no more than 15 percent of all books ever published if it relied solely on publisher submissions.

On a first look, William Patry believes that the scanning program is a blatant violation of copyright: Scanning Documents:

While I think the project is fantastic and would love for it to come to pass (it would greatly faciliate and democratize scholarship and thereby significantly increase learning), as to works under copyright, it can only be done with permission. Absent permission, I see no way for it to be considered fair use or covered by Section 108.

The chutzpadik manner in which Google has gone about this is breathtaking, and indeed what they have done so far is, in my opinion, already infringing, that is the copying of the books even without making them available.

After learning more about the service, Patry comes to look at the situation from a fair use analysis predicated on market impact and decides that the full copying combined with a limited display is a fair use. Google Revisited

So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute.

Eric Goldman thinks that the full-text scanning and copying likely goes beyond the current scope of fair use: Comments on Google Print

This program has some obvious benefits to society; so much good content is "invisible" to the world because it's locked in a dead trees delivery mechanism, and the search costs of finding that information overwhelm the value of doing so. With Google Print, a lot of the world's knowledge will become newly discoverable by a large part of society.

My heart says Google Print is great and therefore we should interpret copyright law in a way to permit it. Unfortunately, my head says that this is highly suspicious under most readings of copyright law.

Siva Vaidhyanathan worries that this may not be the fight worth pursuing-- that Google will not only lose and be forced to discontinue indexing the printed word, but that it will have a negative impact on all users of the written word and all knowledge and culture. Google: Betting the Company: "It's not just Google betting the company. It's Google gambling with all of our rights under copyright -- both as copyright producers and users. Many good things could be washed away."

The Progress and Freedom Foundation's James DeLong compares digitization of books with digitization of music and ultimately thinks that Google will settle, Google suit: Copyright Infringement: "Bottom line, as I see it, the authors are in the right here, but Google ought to be able to negotiate reasonable terms, and gladly--if the service they are planning to provide has enormous potential value, why not pass on some to the authors? Everyone would win."

However, DeLong goes on to find that Google probably has a strong fair use case: Google Responds "To show only the limited info described by Google would, IMHO, pretty clearly be a fair use. So the authors must be objecting to the fact that an entire book is being copied without permission, even if it is then hidden in an electronic vault. But what is the objection, if only snippets are shown? Is it a fear of Napsterization -- that once the digital copy is made it could escape into the world? Or is it simply a naked assertion of right -- "copyright law says no copying, so you must pay me to do it, even if it would actually be in my interest to have snippets made available."

Fred von Lohmann conducts a fair use analysis and finds that Google comes out ahead on three of the four fair use factors, with the parties' even on the fourth factor: Author's Guild Sues Google.

Jonathan Band conducts a more extensive fair use analysis and also thinks that Google's use is fair use: The Google Print Library Project: A Copyright Analysis. In comparing the Google Print project with the Ninth Circuit's analysis in Kelly v. Arriba Soft and finds that the Google Print project uses less of the original source material than the Arriba Soft image search engine, is transformative, will have positive impact on the market, and should be considered a fair use.

Band notes that full-text indexing is done by Google and other search engines with web content (HTML, PDF, Word documents) already. The difference between the copying/caching of web pages and the copying/caching of books is that copying books involves a medium shift. By the norms of the internet, an online publisher who does not opt-out of this copying (such as by posting a robots.txt file) has impliedly consented to having her content copied, indexed and cached.

Mike Madison thinks that this is a case worth pursuing, since both sides are good (the rights of authors against promoting universal access to all information without being evil.) Google Sued; Books Disappearing: "If it manages to win, Google may be planting the seeds of the destruction of copyright as we know it. Depending on your point of view, that may not be a bad thing."

Susan Crawford argues that the public benefit adds to the argument for a finding of fair use: Why Google Is Right: "Google had a great idea. Let's make the books in the libraries of Harvard, Stanford, Oxford, and Michigan searchable. (Note -- the idea wasn't "let's give the books away." Not at all. The point is to make them searchable, not takeable.) There are all these wonderful books that these great libraries want to interest people in, but they're up flights of stairs, on dusty shelves, and in darkness. Let's make them searchable so that people know they're out there."

Larry Lessig also comes down on the side of finding Google's Use a fair use: Google Sued: "It is 1976 all over again. Then, like now, content owners turned to the courts to stop an extraordinary new technology. Then, like now, copyright is the weapon of choice. But then, like now, the content owners of course don’t really want the court to stop the new technology. Then, like now, they simply want to be paid for the innovations of someone else. Then, like now, the content owners ought to lose."

This case points to a more fundamental issue facing copyright law in the digital age: whether copying is the harm copyright law needs to prevent, or should the law focus on preventing unauthorized distributions. In traditional pre-Internet media, making copies, such as photocopies or audio cassette tapes, only serves to have a negative impact on the market for the original source work. With the internet, making a copy may be a mere precursor to a product that does not distribute mere copies of the original work, but uses the original work to create a public benefit without harming the market for that original work.

C.E. Petit questions whether most publishers have the authority to grant Google rights to make copies and notes that administrative costs are not part of the statutory fair use analysis: Speaking of Common Enemies…:

Not only is Google wrong in adopting an opt-out model when the Copyright Act explicitly requires opt-in (cf. 17 U.S.C. § 204(a)), it is wrong in assuming that the publisher has the authority to grant permission in the first place. Google—and Amazon (remember Search Inside the Book?)—would rather not deal with a large universe of authors.1 It would rather deal with a limited universe of publishers. The last time I checked, though, "administrative convenience" was not one of the four fair-use factors set out in 17 U.S.C. § 107

Petit goes on to note some of the flaws in the publisher's class definition: The Procedure Geek Looks at Author's Guild v Google: "The ultimate irony here is the usual mechanism of class remedies: Usually—as in the horribly structured "database settlement" also "brokered" of late by the Author's Guild—everyone who falls into the class definition is bound by the settlement unless they opt out. Given that opt-in/opt-out is precisely what is at issue in Google's program, flowing in the opposite direction, this seems rather silly."

Making a case for reform, Tim Wu argues that the fundamental role of copyright should be in regulating the dissemination of works in a 2004 Michigan Law Review article: Copyright's Communications Policy

The main challenges for twenty first century copyright are not challenges of authorship policy, but rather new and harder problems for copyright’s communications policy: copyright’s poorly understood role in regulating competition among rival disseminators. Since its inception, copyright has set important baselines upon which publishers and their modern equivalents do business. As the pace of technological change accelerates, copyright’s role in setting the conditions for competition is quickly becoming more important, even challenging for primacy the significance of copyright’s encouragement of authorship.

Ernest Miller and Joan Feigenbaum argue for reforming copyright law under this method in Taking the Copy Out of Copyright:

The advent of digital documents has illuminated this issue: In the digital realm, copying is not a good predictor of intent to infringe; moreover, copying of digital works is necessary for normal use of those works. We argue that the right to control copying should be eliminated as an organizing principle of copyright law. In its place, we propose as an organizing principle the right to control public distribution of the copyrighted work.

Even if the Google Print project is found to be a fair use, perhaps the law needs to be reformed to address unlawful distribution rather than unlawful copying. This will make it easier to offer more access to information at a lower cost, with greater certainty and less need to litigate whether every new development in search technology constitutes a fair use.

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Comments

Why hasn't anyone here looked at Google's commercial purpose and intent? It seems to me that both Section 107 and Section 108 deliberately discriminate against for-profit copying. Google is not the little guy here. Their market cap is $88 billion, and 99 percent of their gross revenue comes from advertising. Google needs their own content desperately. They have all that old Usenet stuff in Google Groups, but that's just about all they've got. Everything else is scraped from elsewhere, and owned by others.

There's nothing like a few million books to expand their pixeled real estate, and increase the inventory that carries their ads. Their commercial intent is quite obvious. Even the Authors Guild uses the word "commercial" fifteen times in their brief. All the arguments above are just a bit too subtle and intellectual, even though they are about 50 IQ points better than other commentary on this topic that I've found in the last 24 hours. You need to examine why Google is doing this, because you can bet that the Authors Guild lawyers will be pointing out this commercial purpose to the judge and jury.

This Google project is an Internet land grab, pure and simple. Also, I refer you to the contract between Google and U.Michigan, where Google claims rights to license and sell their digital copy forever, while severely restricting the University's rights to distribute their own copy.

Are you sure Google is doing all this for the benefit of humankind? I'm not.

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