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« Google Print Library: Clash of the Titans | Main | The new threat: Subway map sharing? »

September 24, 2005

Patry Reverses Course on Google Print Library Project

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William Patry, the highly respected copyright lawyer, law professor, and former copyright counsel to the US House of Representatives, Committee on the Judiciary, has decided he was too hasty when he criticized the Google Print library project:

My initial, negative reactions to Google's project reflected, as it should not have, partisan jockeying. The legal issue remains the same, however: whether copying of an entire work without authorization is an infringement where the ultimate user is able to see only a few sentences of the original. Since fair use is an unconsented to use, the fact that publishers object doesn't matter, regardless of the chutzpadik way Google may have handled the issue (The Second Circuit is divided on whether bad faith is a fair use factor).


So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute.

Comments (5) + TrackBacks (0) | Category: IP Use


1. Seth Finkelstein on September 25, 2005 1:10 PM writes...

"So in the Google project, why should we care if there are server copies?"

Isn't that dismissing the legal question? The whole legal problem is if the server copies are a copyright infringement (not the search snippets).

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2. emil on September 26, 2005 4:16 AM writes...

Surely if google owns the books it is fair use to store copies on their servers as "backups", much like you can backup your CDs.

And then making quotes available to other people is then also fair use, as it's always been.

But clearly those who want to get rid of Fair Use altogether have an interest in trying to stop Google doing this, as its an example to all of us about what rights we have (well until we have DRM anyway.)


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3. Crosbie Fitch on September 26, 2005 5:29 AM writes...

There don't even need to be server copies.

For each book Google just has to scan it and update a concordance.

Perhaps we then move on to the question of whether it is legally permissable for a computer to read and digest a book?

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4. Doug Lay on September 26, 2005 9:00 AM writes...

ALA president Michael Gorman is speaking out against Google Print again. I wonder how many ALA members regret supporting this guy for the presidency.

Allowing Google to digitize copyrighted books - even if its intentions are good and even if it complies with fair-use laws allowing it to use excerpts - sets a dangerous precedent, others say.

"This is a project that is being done because they have the resources to do it and [because] people have gone overboard in their [eagerness] to digitize everything," says Michael Gorman, president of the American Library Association. The technology would be better used digitizing archives and collections of historic manuscripts and other unique documents that are now available to only a few, he says. He also worries that technology has a way of circumventing its intended purpose, despite best intentions.

"The history of electronic technology has been that once a new capability emerges, someone finds ways to go around ... protections - in this case potentially avoiding payment to authors. I can't believe that, if [Google] were to go ahead with this, that someone, somewhere wouldn't find a way to illegally exploit it."

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5. Bill Patry on September 26, 2005 10:28 AM writes...

Seth Finkelstein asks whether by asking who cares about server copies I didn't "dismiss[] the legal question? The whole legal problem is if the server copies are a copyright infringement (not the search snippets)."

The focus of my original posting was on the server copies, as I imagine the litigation will be too. I suggest though that focusing on the server copies is technological fetishism and is symptomatic of what is wrong with where copyright has been going.

Just like the constitutional clause focuses on Science in the 18th century sense of learning or knowledge, so too should our analysis of unauthorized uses (and surely we shouldn't insist that all uses be authorized). Does the unconsented to use encourage learning or not? If it doesn't, we shouldn't permit it. If it does, we should look long and hard before banning it.

This is not to say we shouldn't look at the effect of such uses on the original because derivative works incorporating substantial parts of the original can promote learning too, but it is to say that the end can justify the means if the end is non-infringing as I think is the case in Google. And if the end is non-infringing, focusing on a technological necessity like server copies seems to ask the wrong question.

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