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September 21, 2005
Google Sued for Massive Copyright Infringement
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.
Should Google fight the case? Absolutely. From a litigators and trial lawyers point of view, this is a case worth fighting. Theres lots of money at stake, and both sides have lots of money to spend on fees. Its very high profile stuff! And it doesnt (yet) have a clear storyline. Right now, its good guys (do no evil) v. good guys (hard-working, creative authors). Moreover, it isnt 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. Thats 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 Googles 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 Erics premise, but disagree with the conclusion. Not only do I believe that Google should bring it, so to speak (maybe thats 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, Ill be disappointed.
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