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About this weblog
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.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« More on the Stealth Push for Webcasters' Pseudo Copyrights | Main | Google Print: a Story in Modern Web Harmony »

September 21, 2005

Google Sued for Massive Copyright Infringement

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Push has finally come to shove [PDF]: the Authors Guild has sued Google over the Google Print library project.

Xeni Jardin has an excellent round-up of links and commentary on the lawsuit, including a post by my EFF colleague Fred von Lohmann, who lays out the case for Google:


I believe Google has a strong fair use defense here...Turning now to the traditional four fair use factors:

Nature of the Use: Favors Google. Although Google's use is commercial, it is highly transformative. Google is effectively scanning the books and turning them into the world's most advanced card catalog. That makes Google a whole lot more like Arriba Soft than MP3.com.

Nature of the Works: Favors Neither Side. The books will be a mix of creative and factual, comprised of published works. The works cited in the complaint include "The Fiery Trial: A Life of Lincoln" (largely factual history) and "Just Think" (described elsewhere as: "pictures, poems, words, and sayings for the reader to ponder").

Amount and Substantiality of the Portion Used: Favors Google. Google appears to be copying only as much as necessary (if you are enabling full-text searching, you need the full text), and only tiny snippets are made publicly accessible. Once again, Google looks a lot more like Arriba Soft than MP3.com.

Effect of the Use on the Market: Favors Google. It is easy to see how Google Print can stimulate demand for books that otherwise would lay undiscovered in library stacks. On the other hand, it is hard to imagine how it could hurt the market for the books -- getting a couple sentences surrounding a search term is unlikely to serve as a replacement for the book. Copyright owners may argue that they would prefer Google and other search engines pay them for the privilege of creating a search mechanism for their books. In other words, you've hurt my "licensing market" because I could have charged you. Let's hope the court recognizes that for the circular reasoning it is.


Previous relevant Copyfight coverage:

Update: Via Marty Schwimmer, William Patry's take: "And on the Google issue, I share publishers' concerns. 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."

Update #2: Michael Madison weighs in @ the group weblog Conglomerate and his own Madisonian Theory.

Conglomerate:


Should Google fight the case? Absolutely. From a litigator’s and trial lawyer’s point of view, this is a case worth fighting. There’s lots of money at stake, and both sides have lots of money to spend on fees. It’s very high profile stuff! And it doesn’t (yet) have a clear storyline. Right now, it’s good guys (”do no evil”) v. good guys (hard-working, creative “authors”). Moreover, it isn’t very often when a fair use argument gets raised by a big-time, well-financed corporate entity. Usually fair use is the province of the little guy, who has to rely on the legal kindness of strangers. Sometimes the little guy wins; usually the little guy loses. That’s not healthy for fair use. One of the partners at my old firm used to say that sometimes, you have to fight the close ones. Otherwise, you never win the close ones.

...and Madisonian Theory:

Since Google Print is in many copyright-related ways indistinguishable from Google’s core search functionality, Eric Goldman points out in a Comment at Conglomerate and in a note on his own blog that this may be a bet-the-company case -- and that Google should stand down. I agree with Eric’s premise, but disagree with the conclusion. Not only do I believe that Google should bring it, so to speak (maybe that’s the latent litigator in me), but I have this suspicion that the “do no evil” gang have been itching for a (copy)fight. If Google caves, I’ll be disappointed.

Comments (10) + TrackBacks (0) | Category: IP Use


COMMENTS

1. David B on September 21, 2005 2:21 PM writes...

First of all Google has scanned EVERY PAGE OF THOSE BOOKS. Also it is quite easy to see each and every page of those works too. There is really no security in their current version so I can certainly see the publishers suing them for infringement.

It is worse than Mp3.com was!

Permalink to Comment

2. mike on September 21, 2005 2:24 PM writes...

IANAL, but I don't believe that the problem is with fair use (I think the analysis above is correct), but with the fact that Google copied the book without authorization from the copyright holder (at least that's what I see after reading the complaint).

I don't know what the law says about authorization in this context, but I think it very possible that a court court could find that Google did commit copyright infringement regardless of the fair use involved.

Permalink to Comment

3. Kevin Smith on September 21, 2005 2:31 PM writes...

Whatever the social utility of Google Print is likely to be, we should not confuse it with an "advanced card catalog." Even old-fashioned card catalogs had features Google is not trying to replicate -- controlled vocabulary and pre-selected access points, for example. Librarians know that keyword searching through a full-text database is one of the most inefficient forms of searching; it produces a very high percentage of irrelevant hits -- texts that use a word frequently but are not actually about that topic. Google Print is likely to increase the problem of information overload inherent in Web searching without providing any of the remedies for that problem, like field searching and the ability to limit and sort sets of retrieved items, that online library catalogs now routinely include. I doubt Google Print will be interested in adding the metadata and search features that would be necessary for its project to approach the efficiency of even a basic library catalog.

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4. Scote on September 22, 2005 3:36 AM writes...

Scanning books is little different from scanning the web. If one is legal then so is the other, most likely. However, I can see that Google print can reduce book sales. Often you want just a snippet of information or a brief quote from a non-fiction work. In such a case you might well supplant the need to purchase the book by using Google Print.

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5. olivier on September 22, 2005 5:05 AM writes...

scanning books is quite different from scanning the web, a person who puts his content on the internet. it is all about business models and from the claim it is quite clear that google's actions are in conflict with publisher's business models. the mere scanning - which comes down to a copy - is a reproduction and is within the ambit of the exclusive rights of holders.

it is just appaling that google thinks they can do whatever they please. it is to them to look for authorization rather than to holders having to explicitly oppose google's actions

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6. Doug Lay on September 22, 2005 7:51 AM writes...

David B:

Perhaps you could point us to a demonstration of how someone can easily view an entire book online through Google Print's lax security. If it is as easy as you claim, surely someone on the Internet has a demo available? Or are you just speculating?

Permalink to Comment

7. cjovalle on September 22, 2005 10:43 AM writes...

"IANAL, but I don't believe that the problem is with fair use (I think the analysis above is correct), but with the fact that Google copied the book without authorization from the copyright holder (at least that's what I see after reading the complaint)."

That doesn't matter. For a fair use or other copyright exemption you don't need the copyright holder's permission at all- in fact, the author may explicitly deny you permission and you could still perform the action. That's why we can have parody, criticism, etc.

Permalink to Comment

8. Rob Rickner on September 22, 2005 1:21 PM writes...

"Nature of the Works: Favors Neither Side. The books will be a mix of creative and factual, comprised of published works."

This rests on the dubious assumption that the court will look at the works together as a whole, instead of individually. The better answer is that Google will win some and lose some on this factor. The court could easily seperate factual works from creative works. Also, how factual does the work have to be to swing this factor towards fair use? The cases seem to suggest that the portion copied must be extremely factual - as in numbers and stastics. It's not clear the court would differentiate between a Lincoln biography and a poem. In fact, I'm sure they'd find both in favor of the guild on this factor. Remember, Arriba lost this factor.

Factors two and three fall in Google's favor. Full text copying seems to be necessary for their use. The market for the books themselves will drastically expand - particularly if google sets up some sort of automatic linking to purchase sites. The POSITIVE effect on the market for the works is so great it calls into question the Guild's motives for bringing the case! Anyone with half a brain should realize that more people will get paid with this database on Google... Given the massive transaction and licensing costs involved with negotiating and paying for every author in the databse, it isn't clear it would ever exist if Google did pay licensing fees for including authors in the database.

So, like nearly every fair use case, this will come down to whether or not the use is transformative. In one rather obvious way it isn't. Google is copying the entire work without changes. The court could just as easily follow the Arriba logic that it is an exact copy retooled for a totally new and beneficial use.

The best part of the case, is that we have two large players with plenty of money to spend on lawyers. Unlike many fair use cases, both sides are evenly matched and can be expected to present each side fully.

Permalink to Comment

9. hobae on October 4, 2006 11:16 AM writes...

do you think that downloading companys should be sued for letting people download music for free instead of disabling it?

Permalink to Comment

10. Serenity on November 29, 2008 3:44 AM writes...

Today i looked up a guys name which i howard ely! well he is supposibly a poetry editor and i won 1,000 dollars i didnt the guy just wants my money and copyright of my poem!i think that this is wrong anybody who wants to enter their poems in a contest dont enter at poetry.com its fake nobody wins!

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