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Schroeder, Pat. Publishers Sue Google over Plans to Digitize Books. Association of American Publishers. 17 November 2006 .
On August 12, 2005, the Association of American Publishers (AAP) posted a press release on their official website expressing their frustrations with the Google Print Library Project. The release states that the AAP supports the aims behind Google’s program but objects to Google’s use of copyrighted material without explicit permission. In addition, the AAP objects to Google’s “opt-out” policy. Through this policy Google will copy and digitize copyrighted works unless copyright owners specifically exclude their works from the program. Mrs. Schroeder, President and CEO of the AAP, states that Google’s opt-put policy, “…shifts the responsibility for preventing infringement to the copyright owner rather than the user, turning every principle of copyright law on its ear.” This August press release sets the stage for the lawsuit filed by the AAP against Google on October 19, 2005.
The day this lawsuit was filed, the AAP posted a press release on their official website. The release states that the lawsuit resulted from a breakdown of negotiations between the AAP and Google. According to the AAP, an ISBN based system can be easily utilized to aid in identifying copyright owners and obtaining proper permission to copy and digitize works. However, Google’s rejection of this system forced the AAP to file suit. In this release as well as the August one, the AAP makes a point to state their understanding of the benefits of Google’s program; the release declares, “…authors and publishers know how useful Google’s search engine can be and think the Print Library could be an excellent resource.” Nevertheless, the AAP strongly maintains that these benefits do not trump the fact that Google is engaging in copyright infringement.
This letter illustrates the fact that while there are many similarities between the business practices of Arriba Soft and those of Google, the differences that do exist, may present problems in a finding of fair use for Google. Both cases involve accusations of copyright infringement based upon the wholesale copying of protected material to create search engine databases. However, the material Arriba Soft copied was already digitized and available online, whereas, in general, this is not the case for the material Google is copying. This distinction is viewed as critical by many as posting information on the internet is typically viewed as an implied license.
Additionally, the full-resolution copies Arriba Soft made in order to create the thumbnails it used for indexing were deleted after the thumbnails were produced. In contrast, Google both keeps a copy and gives a copy to the library the work was copied from. Even if Google were able to succeed in a fair-use argument based upon the decision in the Kelly case in which full copying could be considered fair use if necessary for the intended use, there would still be the issue of justifying the provision of a digital copy to the participating library.
Given these differences, the article poses the question, “how does Kelly v. Arriba Soft support your claim?” Moreover, the article asks why other cases in which the courts decided against a claim of fair use, such as Buena Vista v. Video Pipeline, do not apply to Google’s argument as well. This second question is an intriguing one; however, it seems as if the Kelly case more directly parallels Google’s fair use assertion. One large difference is that unlike Video Pipeline, Google does not profit directly from its use of copyrighted material.
Adler, Allan, et al. “The Battle over Books: Authors and Publishers Take on the Google Print Library Project.” The New York Public Library, New York. 17 Nov. 2005.
On November 17, 2005 WIRED magazine and the NYPL sponsored a discussion on the Google Print Library Project. The panelists were Nick Taylor, representing the Authors Guild, David Drummond, representing Google, Lawrence Lessig, a Stanford Law professor specializing in copyright law, and Allan Adler, representing the Association for American Publishers (AAP). The discussion was intended to flesh out the issues raised by Google’s project and to gain insight into the future of the digital indexing of books. However, rather than elucidate the copyright issues inherent in this debate, this discussion illustrated that economic incentives are at the heart of the conflict between Google and its opponents.
The first to speak, Taylor, immediately alludes that the Authors Guild’s objection was routed in its lack of economic benefit from Google’s program. He claims that Google’s actions represent, “a rogue version of eminent domain, only without the compensation that government routinely gives.” Adler’s statements reveal a similar point-of-view in which the real threat Google poses is an economic one. Adler declares that since Google is a for-profit company its use of copyrighted material is essentially robbing copyright owners of the ability to exploit the market for their works.
Through this discussion it becomes apparent that the Authors Guild and the AAP believe that Google has created a new market for their works. In addition, they believe that Google’s program will have a negative effect on their ability to access this new market. Thus, a finding of fair use seems inappropriate to the Authors Guild and the AAP as in their view the fourth factor, effect on the market, should weigh against Google. However, in the course of this discussion, both the Authors Guild and the AAP failed to show how Google Book Search impedes authors and publishers from licensing their work to search engines or anyone else.
This article attempts to assess whether or not the reproduction of copyrighted works under the Google Library Project can be classified as fair use. This assessment is made through an examination of potential court rulings with regard to the four factors used to determine fair use. The article points out that a finding of fair use could be likely with regard to the first factor, purpose and character of the use. It states that Google’s use could be considered transformative as its function of indexing works, differs greatly from the function of the original works and thus “does not supplant the original.”
The article also identifies potential problems that could arise in attempting to apply the second and third factors, nature of the work and amount used, to Google’s use. According to this article, the issue with the second factor is that Google makes no distinction between factual and creative works; however, this distinction carries great importance in a fair use determination. The third factor provides problems as there are two possible ways in which the amount used could be judged. Although Google displays only a few sentences surrounded the item searched, an entire copy of the work is made in order to digitize the original. The article alludes that this copying may not be considered fair.
With regard to the fourth factor, effect on the market, the article states that Google’s library project could potentially have a negative effect on the market as it could prevent copyright holders from being able to license their works to other search engines. However, the article notes that this is unlikely as many copyright holders do not charge a license fee to participate in Google’s publisher program. Moreover the article points out that since many of the works in the library project are orphan works, there cannot be a negative effect on the market.
On September 20, 2005, the Authors Guild and several individual plaintiffs filed a class action lawsuit against Google. Following the filing of this lawsuit a press release was posted on the Authors Guild website. The press release states that the lawsuit is in response to the Google Library Program. According to this press release, Google’s scanning and digitization of copyrighted materials without the permission of copyright holders is tantamount to “massive copyright infringement.” The Authors Guild’s conviction that Google is guilty of copyright infringement has its basis in the opinion of Nick Taylor, president of the Authors Guild, who states, “It’s not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.” As a result of Google’s infringing actions the Authors Guild requests an injunction and for damages to be awarded.
Wojcicki, Susan, “Google Print and the Authors Guild.” Online Posting. 20 September 2005. Google Blog. 15 November 2006 <http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html>.
Google Vice President of Product Management, Susan Wojcicki, responded to the Authors Guild press release by posting on Google’s official blog later that day. In this post Wojcicki highlights the reasons why Google believes it is not committing copyright infringement. Among these reasons is the fact that copyright holders can have their works excluded from the program at any time. Additionally, Wojcicki points out that Google does not provide users full access to a copyrighted text; she states, “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.” Throughout this post Google asserts that its Library Project is in full accordance with both the fair use doctrine and the principles of copyright law.
This post to Google’s official blog is intended to provide readers with insight into the purpose behind Google Print in light of the lawsuit filed by the AAP on October 19, 2005. The explanation of the rationale behind Google’s project shows that Google believes its use of copyrighted material is non-infringing. In this blog Google states that it fully respects copyright law and the creativity it protects. However, Google adds that Copyright law, “is all about which uses require permission and which don’t.” Throughout this post, Google affirms that its scanning of copyrighted material is fair use and thus consistent with the Copyright Act.
Additionally, Google uses this post to explain the benefits their Library Project bestows upon its users. The project is referred to as, “one giant electronic card catalog that makes all the world’s books discoverable with just a few keystrokes by anyone, anywhere, anytime.” However, a workable “electronic card catalog” could not exist were Google to make anything less than full copies of as much text as possible. Google illustrates this concept, showing that the copying and indexing required for the Print Library Project parallels that necessary to create a useful search engine. Google insists that the practices it follows in its Library Project are the same as those it utilizes in the creation of its search engine database for websites. If Google were not allowed to copy and index websites without explicit permission, its search engine could not exist. Thus, Google maintains that complete copying is required to fulfill the purpose of their project. This fact is likely to aid Google in a finding of fair use, as the ruling in Kelly v. Arriba Soft states that entire copies may be fair use if the amount copied is the minimum amount necessary.
Thatcher, Stanford, G. “Fair Use in Theory and Practice: Reflections on Its History and the Google Case.” Journal of Scholarly Publishing. 37.3 (2006): 215-229.
This article provides many arguments as to why Google’s digitization of copyrighted works should not be considered fair use. Most importantly, unlike many other criticisms of the Google Library Project, this article clearly points out the ways in which Google’s program could directly hurt the market for these copyrighted works. According to this article, the danger is not necessarily in the inability of copyright holders to license their material, an argument which has been deemed negligible due to the presence of Google’s Publisher Program, but rather the threat posed by the presence of the digital copies.
Through Google’s arrangement with the libraries participating in the project, two digital copies of each copyrighted work are formed, one used by Google for indexing and the other by the library as the library sees fit. This article claims that these copies may in fact serve to supplant the market. As such, these copies could have a negative effect of the market value of the copyrighted works. Additionally, since no agreement exists between Google and the copyright holder, Google has no real responsibility for maintaining the security of the copy.
Despite the arguments made against a finding of fair use, this article recognizes that ultimately the court will make a decision and then adapt its findings to the language of the four factors. Since, as the article states, “judicial ‘decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns’” it is unlikely that the above arguments against a finding of fair use will, of themselves, contribute much to the court’s decision.
Ganley, Paul. “Google Book Search: Fair Use, Fair Dealing, and the Case for Intermediary Copying.” (Jan 2006). SSRN. 17 Nov. 2006. <http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=875384>.
This article is interesting in its application of the court’s rulings in UMG Recordings v. MP3.com to Google’s argument of fair use. The article recognizes that with regard to most of the four factors, Google’s use of copyrighted materials in its Print Library Program more closely parallels Arriba Soft’s use than that of MP3.com. However, the article cites the court’s opinion in Harper & Row, Publishers, Inc. v. Nation Enterprises, noting that the fourth factor, effect on the market, is often the most important in a finding of fair use. It is with regard to this last factor which is, “undoubtedly the single most important element of fair use,” that the decision in the MP3.com case becomes increasingly relevant.
Google argues that it will increase the market for books as it will enable users of the Print Library Program to discover and obtain books they would not know of otherwise. This claim gains support from the increase in sales noted by Amazon’s “Search Inside” feature which allows users to search and view the context of books available for purchase through Amazon’s website. According to this article, “sales of searchable titles have increased by 9% relative to non-searchable titles.” The article also points out, however, that the positive impact of Google’s program on the current market for books does not necessarily weigh in its favor in a finding of fair use; the article states, “as the MP3.com court made clear, the positive impact on prior markets does not justify the defendant usurping a potential market.” Unlike the MP3.com case, the potential market usurped by the Print Library Project is not well defined. Unless Google’s opponents can prove the presence of a potential market, it appears as if the market impact of Google’s use will primarily be positive. As such, it seems likely that the fourth factor will weigh in Google’s favor in a finding of fair use.
Bracha, Oren. “Standing Copyright Law on Its Head.” (Sept. 2006). SSRN. 17 Nov. 2006. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931426>.
This article delves into the legal issue of Google’s “opt-out” policy for its Print Library Program. The opt-out policy for Google’s program states that Google will digitize all works unless the copyright holder informs Google to exclude its works. This policy is based upon the legal theory of implied consent. The implied consent construct was formed on the basis that the ability to fully utilize the Internet would be greatly stunted were permission required to access and use each website. The author of this article illustrates this concept stating, “A world in which each electronic access to a computer connected to the Internet required pre-authorization at the peril of legal liability would stun much of the power and promise of this medium.” As a result, it is implied that one who makes his works publicly available on the Internet wants his works to be seen. Accordingly, it is presumed that the creator of a website intends to grant access to all viewers. It is this theory of implied consent that Google, and all other search engines, utilize in order to create the databases necessary for search and retrieval.
Google claims that it offers copyright holders whose works would be included in its Book Search Program the opportunity to “opt-out” in order to be consistent with its policy for website searches. Moreover, Google, or any digital-library project for that matter, would greatly lose out were it to rely upon an “opt-in” policy. The article exemplifies this stating, “substantial gaps exist in information which is vital for avoiding the infringement risk.” These gaps include the unknown status of works, unknown owners of works, and uncertainty regarding the intentions of the owners. Thus, it could be argued that due to these “substantial gaps” the creation of a workable index of books would be impossible; as such Google Book Search would be effectually useless.