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« Why We'd Kill the Web If It Was Born Today | Main | Who Holds the Liability Bag? »

November 4, 2005

Just the Facts, M'am

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Posted by

Tim Lee wishes Ms. Schroeder would stick to the facts when she criticizes the Google Print library project:

I’m sorry if for beating a dead horse, but it seems every Google critic is making the same mistake:

The creators and owners of these copyrighted works will not be compensated, nor has Google defined what a “snippet” is: a paragraph? A page? A chapter? A whole book?

The answer is “less than a paragraph.” You can find that page by going to the Google Print home page, clicking “About Google Print,” and then clicking “view our Google Print Screenshots.” There are links to that page in several other places on Google Print’s web page as well.

Am I off base to think that this falls under the category of “basic fact-checking?”


I've linked to these posts before, but they're excellent resources for clearing up the confusion about what Google is doing, and well worth passing along for anyone who might otherwise be led astray by articles like Schroeder's:

Bonus: Peter Suber's 9-point reply to the Schroeder/Barr piece: "Why is it more important for you to disparage the arguments against you as intellectually dishonest than to restate them honestly and criticize them?"

Previous Copyfight coverage: Reining in Schroeder.

Comments (10) + TrackBacks (1) | Category: IP Use


1. Karl-Friedrich Lenz on November 4, 2005 9:18 PM writes...

Well, Google is not displaying only one snippet per book, but thousands of them, covering every book almost completely.

And yes, Google has _not_ disclosed what "set of pages" they are talking about in number 6 of their FAQ:

"6. I'm already logged in. Why are you telling me the page is unavailable?

As part of our efforts to protect a book's copyright, a set of pages in every in-copyright book will be unavailable to all users."

This "set of pages" is the only one they are not using to display to searchers, and I don't know how large it is in relation to the whole book.

Quite possibly this restriction applies only to the "Publisher" part, since it talks about "pages". In that case, the "Library" project would indeed use the whole book, and display the whole book, even if to different searchers (which is irrelevant, since Google is the defendant here, not the searchers).

While your position is correct if you are only looking at individual searches, Google is actually serving multiple searches per book.

That does seem to make somewhat of a difference when talking about the "portion used" under fair use.

Permalink to Comment

2. Joseph Pietro Riolo on November 5, 2005 10:03 AM writes...

To Karl-Friedrich Lenz:

Where in the U.S. copyright law does it say that it is not okay
for Google to display thousands of snippets not to one or few
people but to many millions of people?

Here is an analogy: I have a book. 1,000 people in my town
knows that I have it. These 1,000 people don't want to buy
the same book for whatever reasons (to save money, not to kill
trees, will not keep book for long time, etc.). For the next
five years, some of them come to my house and look at my book
and copy a snippet from it (different places in book). Some
of them call me and ask me to quote a snippet from my book
over the phone (again, different places in book). Some of
them send me e-mail asking me to quote a snippet from my book
(still, different places in book). Clearly, the U.S. copyright
law permits it.

However, what is not permitted by the U.S. copyright law is that
these 1,000 people can't come together and put all the snippets
that they collect from me together to create another book that is
substantially similar to my book that is in my possession. In
this case, they are are guilty of copyright infringement and I
am not because I do not know that they plan to do that.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Permalink to Comment

3. Timothy Phillips on November 5, 2005 11:46 AM writes...

On a related matter, here is a preliminary report from someone who has actually tried using Google Print.

Permalink to Comment

4. Timothy Phillips on November 5, 2005 11:48 AM writes...

On a related matter, here is a preliminary report from someone who has actually tried using Google Print:

Permalink to Comment

5. Mike Perry on November 5, 2005 2:15 PM writes...

I suspect that at trial Google Print will get away with sub-paragraph snippets as fair use. The problem is that, from the perspective of a serious researcher such a short text is almost worthless. We need easy access to the entire text.

Advocates of eugenics, for instance, often take away in one paragraph almost everything they seem to have granted in another. There's a paragraph in the eugenic writings of Victoria Woodhull, for instance, in which she claims to be offering "freedom of choice" to women, just the sort of search term someone researching her views on reproductive issues is likely to use. But in the preceeding paragraph she said that in the eugenic society she wants to create it would be a CRIME for a woman to have a child from a father who was an alcoholic or who had seizures. The only freedom Woodhull was offering in this context was that somehow society would take economic care of women who were forced by her eugenic laws to divorce a man they love.

And yes, I know Victoria Woodhull's writings are in public domain. I just published some of them in Lady Eugenist. But the controversial parts of Google Print aren't and for those Google will be quoting snippets so brief that lazy researchers (alas, perhaps the majority, at least among students), will be doing a lot of out-of-context quoting.

And keep in mind that under copyright law Google Print can't quote more than tiny snippets. Its engaging in none of the sorts of creative, critical and scholarly work that would justify a longer quote. I know, my The Lord of the Rings chronology, Untangling Tolkien, gives virtually every detail in the tale's plot, but is legal because it does that for a 'scholarly' reason.

Defenders of Google Print are getting it wrong. The scheme is not a small step in the right direction. It's a small step in the wrong direction and a distraction from what we need to be doing. Fair use simply won't bear the weight of extensive quoting (much less the full text) of copyrighted works. It won't give everyone with an Internet connection the world's largest library. It'll give them a long and clumsy list of snippets, overlapping and based on clumsy word searches, that then require them to locate copies of a long-out-of-print books and have them sent through the mail. I do that sort of thing now, and it's a pain.

What we need is an easy, inexpensive and legally unambigious way to divide all out-of-print but still copyrighted books into two categories: 1. Those for which the copyrighter holder is known (by simple registration) and who must be paid for a copy to be downloaded. Here we're talking about 1-2 cents per page. Amazon is moving toward a purchasing scheme that would work well with that. 2. Those for which the copyright holder is not known and for which copies can be made subject to certain restrictions. That'd be a good field for Google Print. It'd be a win/win situation for everyone--authors, search engines and researchers.

Congress may not move very fast, but with the proper pressure, Congress could settle this matter legislatively in a broad and useful manner before we have a definite court settlement that's likely to say nothing more than that tiny snippets are OK.

--Mike Perry, Inkling Books, Seattle

Permalink to Comment

6. Seth Finkelstein on November 5, 2005 4:43 PM writes...

"Where in the U.S. copyright law does it say that it is not okay
for Google to display thousands of snippets not to one or few
people but to many millions of people?"

I think that would be factor #1 of the fair use test, "the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes".
and *possibly* factor #4, "the effect of the use upon the potential market for or value of the copyrighted work"

One part of the for-Google argument seems to be an assumption that if it can be done once for less commercial reasons, It's absolutely, unarguably, no change at all in kind, to do it an unlimited number of times for a more commercial reason.

It is *far* from clear that this scaling argument works, and it certainly shouldn't be asserted as self-evident.

Permalink to Comment

7. Karl-Friedrich Lenz on November 5, 2005 7:51 PM writes...

I had rather number 3 in mind:

"the amount and substantiality of the portion used in relation to the copyrighted work as a whole;"

I think that serving two snippets uses more than serving only one, and serving thousand snippets uses still more.

And I think that the analysis should not be confined to the single search result report, but to the sum of all search result reports Google does on a particular work.

In the analogy provided by Joseph Pietro Rielo above, he would be using a larger portion of the book by quoting different snippets to different people than if he did that only once.

Permalink to Comment

8. Joseph Pietro Riolo on November 5, 2005 8:34 PM writes...

To Seth Finkelstein:

Nowhere in fair use section says the maximum number of times that
fair use can be exercised. If I exercise fair use five times
from one book, that is fine. If I exercise fair use one million
times from one book spread over the span of 50 years, that is
also fine.

To Karl-Friedrich Lenz:

Nowhere in fair use section says that the sum of previous
snippets must be considered for the purpose of fair use. If
I quote 5 snippets from one book during first year, 10
snippets from the same book during second year, 12 snippets
during third year, and so on, that is still permissible.

Each case of fair use stands on its own and is independent
of past and future fair use cases.

To Mike Perry:

What you want is not the primary goal of Google Print. It
merely gives suggestions to researchers where they most
likely find materials that pertain to their research. If
they want more than what is available through snippets,
they just have to go through longer way to obtain larger
materials (i.e., go to library).

I really don't have a lot of hope for Congress to listen to
your suggestions. Too many authors simply don't like to lose
not even one iota of control over their works.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Permalink to Comment

9. Karl-Friedrich Lenz on November 5, 2005 10:02 PM writes...

Joseph Pietro Riolo:

You are right that section 107 says nothing about the point. It however also does not confirm in any way your view that each use is to be reviewed independently.

We can easily agree that this question is crucial for determining the portion used by Google.

Now, in your analogy, you are quoting a book five times this year. I completely agree with you that these instances should be judged each on their own, as long as this is not part of a plan by you to get around number 3 in Section 107.

If I post the first three lines of the latest Harry Potter book on my blog, and then the second three lines five minutes later, and so on, you bet I am going to hear from Ms. Rowlings' lawyers. They will tell me to stop it, and my protest that I am posting three lines at a time won't help me much.

It won't help me because there is an obvious connection between the single posts.

Now, back to Google.

There is an obvious connection in their case as well.

They include each book only once in their search database. Then they lean back and look at the thousands of snippets flowing to the public from that one act.

That seems to be one reason to view the totality of the use flowing from the act of including the book as the standard when talking about "portion used" under Section 107.

I assume that this question will be discussed in the lawsuit, and when the Supreme Court decides on the issue in 2009, we might get the answer.

However, that decision is not yet in any database. Future caselaw is one area that even Google can't reach.

Permalink to Comment

10. Joseph Pietro Riolo on November 6, 2005 8:03 AM writes...

To Karl-Friedrich Lenz:

I agree with you that we have to wait and see how the case
will proceed. Because it is a civil action, it is going to
be very, very, very slow (motions, discovery, witnesses, and
so on). Public comments made by the plaintiffs are entirely
another matter though.

I think that there was a court case that covered the same
issue that you raised in your Harry Potter example. It
is something like aggregation of quotations which is not
permitted. But, I don't remember much details about the
court case.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Permalink to Comment


Listed below are links to weblogs that reference Just the Facts, M'am:

Column: Let Google scan… from
Here’s a column I just posted at about Google resuming its Library scanning project: Google, the search-engine giant that has become so ubiquitous its name hardly even sounds stupid any more, has started scanning and indexing l... [Read More]

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