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August 12, 2005

Siva Vaidhyanathan: Google Is Right to Hit Pause on Library Plans

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Siva Vaidhyanathan responds to Aaron Swartz's post below on Google's decision to press pause on the Google Print library project in order to allow publishers to opt out of scanning:

Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google's original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.

If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain. I can't imagine what sort of argument -- short of copyright nihilism -- would justify such a radical change in copyright law. [...]

If the University of Michigan wanted to do this copying for its own patrons, then it certainly could. I wish more libraries would push their rights under copyright. But corporations do not have the same leeway as libraries. Libraries work for us. Corporations work for themselves. [...]

So I am very pleased that Google has decided to work with publishers (like it said it would originally) to convince them that offering their text in searchable form is good business for all. I still have some major problems with the contracts that these libraries signed with Google. I think the libraries are getting played badly here and they are violating their own principles of openness and public service by letting Google take charge and set the terms of this service.

Google might be a very good corporation -- one of the best ever, probably. But it's still not a library. Let's try to remember that.

Update: Aaron is updating his post with new developments, including providing a link to BoingBoing's round-up of reactions.

Update #2: Derek Slater offers an impassioned rebuttal to Siva's argument:

[The] caselaw doesn't amount to what Siva implies it does. Though it's only a brief citation, it seems Siva seriously misreads American Geophysical Union v. Texaco. The court didn't rule against Texaco because it was a corporation. In fact, the appeals court specifically disagreed with the district court's "undue emphasis" on the for-profit nature of Texaco.


We can put aside caselaw and go to straight-up normative analysis - Siva thinks that this Google Print is bad, bad, bad. What I see is gross hyperbole. What Google's doing is nothing like widespread infringing file-sharing on P2P. Sure, they're copying the entire book, but they're only providing small selections. I don't see how that amounts to a "copyright meltdown." (I know that you can try to do different searches to over time accumulate the whole book, but Google does enough to frustrate that, I think.)

Libraries good, corporations bad doesn't ring true for me. Without a doubt, I'm glad that people are becoming more skeptical of Google, despite their "we're not evil" mantra. However, in this case, Google was providing an important public service, one that happened to benefit the company commercially, but one that also did not pose a serious threat to copyright holders (in fact, it probably would help them), and for those reasons I think Google Print should be lawful.

Comments (7) + TrackBacks (0) | Category: Counterpoint


1. Derek Slater on August 12, 2005 4:39 PM writes...

I think Siva is dead wrong here on a number of scores:

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2. SFix on August 12, 2005 9:16 PM writes...

"Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google's original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco"

Hmm...Well, if google isn't allowed to scan books without permission then it isn't allowed to scan the internet without permission. Websites and Books are covered under the same copyright laws. In both cases Google copies the entire contents without permission to its computers and offers a commercial service based on the use of copyrighted material. I guess Sid wants Google to stop doing internet spidering as well.

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3. SFix on August 12, 2005 9:19 PM writes...

Oops, meant "Siva" not "Sid."

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4. cjovalle on August 13, 2005 12:24 AM writes...

Websites and books are covered by the same copyright law. Digitizing information and indexing already digital information is not treated the same under copyright law.

To some extent, I'm playing devil's advocate. I think Google Prints is an interesting idea.

I don't quite understand the argument that Siva "seriously misreads" the case. The Texaco decision certainly demonstrates a fair use evaluation of some commercial copying, and doesn't solely focus on the fact that Texaco is a commercial entity. (The Texaco case has other problems, such as the circular licensing/market effect reasoning, but that's another story. :P)

I don't think Siva is just saying "libraries good, companies bad" either. Recognizing that libraries and commercial entities have different reasons for their actions isn't the same as making those types of judgments. Furthermore, not for profit libraries and archives can copy materials that commercial entities can't, by statutory law. Even when libraries digitize works, however, they're very restricted in how the digitized work can be made available to the public, and Google Print goes far beyond those limitations. (I find those limitations, by the way, restricting digitized material to the physical location of the library or archive vague and overly restrictive.)

I would like to see more about the contracts that Google has with the libraries.

I think Google Print is a pretty cool idea, and I would love to see it working. However, if they're basing their digitization and distribution of exerpts on fair use then both of those acts need to be covered by a fair use analysis. Even if Google is only making exerpts from the copyrighted work available, the actual act of digitizing itself is a potential infringement. I haven't read very good arguments about why that process is legal (although I have read decent arguments about why it should be legal).

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5. Karl-Friedrich Lenz on August 13, 2005 12:26 AM writes...

If Google can't copy all books and make an index from them (I certainly think they can't and they shouldn't be allowed to do so, agreeing with Siva Vaidhyanathan), then what exactly is the difference to their indexing of the web?

Don't they need to clear the rights to that as well?

If anything, the web index is infringing even stronger, since they also display caches of all pages, while the book index would never display the whole book.

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6. Seth Finkelstein on August 13, 2005 1:01 AM writes...

Website are typically free for the copying, while books are not. This commercial vs. noncommercial distinction is the answer to the "How is it different from ..." objection.

Moreover, one can opt-out of being copied by Google. So one could say that the effect here is more like the book publisher's "robots.txt".

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7. Siva Vaidhyanathan on August 13, 2005 9:00 AM writes...

Great comments! This is an interesting debate.

I posted a response to Derek and others here:

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