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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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August 15, 2005

Google Print Is As Google Print Does

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Michael Madison offers his .02 on the still-raging Google Print library debate:


In response to Siva’s post about Google Print and fair use, Laura Quilter weighs in, hoping to push the definition of "library" in Google’s direction — and toward a more expansive view of fair use.

Google's best case, it seems to me, is that it's hoping to provide "meta-information" about the underlying copyrighted works. Google has a few appellate cases in its corner — Kelly v. Arriba Soft to start with, then Ty v. Publications International, and (I'd say) Sony v. Bleem, and Triangle Publications v. Knight-Ridder. But Google has to deal with the scope of its project — which invites comparisons to less favorable opinions, like A&M Records v. Napster and UMG Recordings v. mp3.com (a district court case) — and it needs to couple its Kelly argument with leverage from cases approving "intermediate" copying under certain circumstances (e.g., Sega v. Accolade). The opt-out option makes Google look less like the bad guy, but it may not help the fair use claim — which I think is plausible but novel, and far from a slam dunk.

So, Laura suggests, Google should draw on the beneficence associated with "libraries" (think of George Carlin's description of baseball, which is all about going "home"). Even fair use skeptics have to agree: libraries do and should get a lot of slack under copyright law.

Is Google a library? Is there an "essence" of library — a definition — that Google can meet? Or can we say that Google is a library even if Google doesn't? Or what if Google says that it’s a library, but "we" (perhaps a court) say otherwise? Whose analysis gets deference? What if Google and a "real" library (Harvard? Stanford?) sign an agreement in which the contract specifies, whereas, Google and Stanford agree that Google provides library services via Google Print? Or should we simply conclude that Google should be characterized as a library because Google is doing something noble, and we all know that libraries are in the nobility business?

All of which is a roundabout way of suggesting that we should be focusing more on what Google does than on what Google is.

By the way, what if the service were named "Microsoft Print"? Or (since that sounds unfair to Microsoft) "Dr. Evil Print"?


Update (August 16): Siva responds:

To answer Michael (and Laura): Yes, there is an essence of a library. And no, Google does not come close. But Michael is right to focus on actions instead of essences. And here, as well, I would argue that yes, libraries do many things that Google can and will not.

There are serious ideological and practical distinctions that make libraries libraries and librarians librarians. And all the algorithms in the world are not going to replace them.


Update #2: Michael responds:

[Siva] quotes this argument approvingly, in which the author distinguishes between rhetorical appeal to libraries and a "real" fair use argument.

[...]

And as far as fair use is concerned, I don't think that this sort of analysis is distracting at all; I think that it gets at the heart of the problem. As a copyright lawyer I'm always skeptical of characterizing an argument as an "authentic" or "real" form of argument. Copyright is too plastic (to borrow someone else’s word), and it operates at too many levels, for all that. "Google is doing what a librarian does" is a perfectly valid form of fair use argument — the case reporters are filled with fair use decisions that are framed this way — even if at the end of the day I think that the argument likely fails on the merits. Non-lawyers who encounter the fair use statute are tempted, understandably, to treat the text as filled with magic words (and as improved by magic words supplied by the Supreme Court, like "transformative"). The magic words are almost uniquely unhelpful, either as guides to what courts actually do, or as guides to what courts should do.

Comments (4) + TrackBacks (0) | Category: IP Use


COMMENTS

1. cjovalle on August 15, 2005 7:13 PM writes...

I honestly think the discussion of Google-as-library is more of a distraction from a real fair use argument. Copyright law does not have a definition of a library (or archive) per se, but does have qualifications that a library or archive must fulfill to take advantage of library or archive exemptions. Section 108, a 1 and 2, notably:

---
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field;
---

Under the current contract (which you can find a discussion of on the Library Law blog, when the FOIA'd it), I don't think Google can meet those requirements (particularly the first). That's why Google is not a library. If they changed the contract, maybe... but more importantly, I don't know if Google would want to be treated as a library.

The restrictions for digital reproduction are pretty substantial, even for libraries. It's actually a losing proposition for Google to be treated as a library, because the digital reproductions of a library are limited to the premises of the library. That's the physical premises of the library.

Permalink to Comment

2. cjovalle on August 15, 2005 7:29 PM writes...

Correction- the library law blog didn't submit the FOIA, but received a message about it:

http://blog.librarylaw.com/librarylaw/2005/06/google_univ_of__1.html

If Google's contract wasn't quite as... excessive? as it appeared, or if they redid the contract, of course, this all could just be another example of how Section 108 needs to be rewritten.

Permalink to Comment

3. Mary Minow on August 16, 2005 1:26 PM writes...

I agree with cjovalle that looking to Section 108 is misplaced.

I had a flurry of calls a couple of years ago from commercial companies who thought perhaps they could become a Section 108 library just by calling themselves an online "library." In a word, no. One has to meet the 108(a) criteria to qualify.

I don't agree that it could ever be a losing proposition to be treated as a Sect. 108 library. Nothing in 108 negates fair use (see 108f)...so this is not lost by qualifying as a 108 library.

Copyright Office Circular 21 gives excerpts from the Senate and House Reports concerning libraries in profit-making institutions. Although they differ, both agree that no library can use 108 to make systematic copies (108g).
http://www.copyright.gov/circs/circ21.pdf (pages 13 and 15).

I think a good fair use argument can be made via Arriba Soft and intermediate copying cases.. GoogleLibrary is really an efficient index that does not lead users to unauthorized full text. More at librarylaw blog Feb 15, 2005
http://blog.librarylaw.com/librarylaw/2005/02/googlelibrary_a.html

Permalink to Comment

4. cjovalle on August 16, 2005 1:41 PM writes...

Actually, that's right, I stand corrected.... There is nothing to lose by being treated as a Section 108 library. It would help a fair use argument, because to qualify to be a section 108 library you'd need to meet the standards. But library exemptions, I think, are the wrong place to be looking. They're just not sufficient.

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