Google's battle over library books
By Elinor Mills
http://news.com.com/Googles+battle+over+library+books/2100-1025_3-5907506.html
Story last modified Mon Oct 24 04:00:00 PDT 2005
Ten months ago, Google announced that it planned to scan, digitize and make
searchable the collections of five of the largest libraries in the world.
At first, it seemed like one of those nifty ideas that regularly percolate
out of the young search giant.
But there's a big catch: Many of those books are protected by copyrights,
and Google is requiring copyright holders to opt out of the scanning
process if they don't want their books in libraries to be searchable.
That's raised plenty of hackles among publishers, who argue that they--not
Google--should control who can see and search the books. And last week,
five leading publishers filed suit against Google to stop the program.
"It's a commercial use" of the books and therefore a copyright violation,
said Ralph Oman, a lawyer and former Register of Copyrights for the U.S.
Copyright office. "This is masquerading as an educational use (which
wouldn't be an obvious violation), but from Google's point of view this is
a money-making exercise."
But not every copyright expert is so sure Google is on thin ice. Truth is,
there's no consensus in the legal community on this one-of-a-kind case. The
fight comes down to a simple question: Is the search king setting itself up
to be a copyright violator of epic proportions, or is it a champion of
learning trying to make even the most obscure books readily accessible in a
Web search?
"It's an incredibly interesting test case. I don't see a clear winner, at
the moment," said Bruce Sostek, an intellectual-property lawyer at the
Dallas firm of Thompson & Knight. "The issue of supplanting the rights of
authors and trying to substitute ones and zeros for real books, I think
there is something that strikes people as unsettling about that."
The library scanning project is part of Google's Print Program, which was
launched a year ago with the goal of making books all over the world as
full-text searchable as possible through a virtual or electronic card catalog.
The Print Program has two components, one for publishers and one for
libraries. Under the Google Publisher Program, the company is working with
book publishers to make titles searchable and easy to purchase. The search
result pages include advertisements if publishers want them, and most of
the revenue goes to the publishers, Google said.
The controversial part of the Print Program, which has prompted two
lawsuits so far, is the Print Library Project. Under the Library Project,
the search giant is scanning, digitizing and making searchable parts or all
of the collections from Stanford University, Harvard University, Oxford
University, the University of Michigan and The New York Public Library.
Google says it will scan copyright protected books from libraries unless
the publisher or copyright holder expressly opts out. If the book is
copyright protected, there is minimal text, only a few sentences, or
"snippets," surrounding the keywords searched. There are no ads on Google
Library Project pages.
If the work is in the public domain, the entire page will be shown and
people will be able to read the whole book. However, they will not be able
to print or download the book, Google says.
Opt out, or else
The company halted the library book scanning in August to allow copyright
holders time to contact Google and opt out. Google plans to resume the
scanning Nov. 1. But extra time or not, publishers are miffed.
"With 'opt out' they are shifting the burden to the copyright holder to
come in and affirmatively do something, which somewhat undermines their
rights to the copyright," said Sostek.
However, David Drummond, Google's general counsel, argued that Google's
plans fall under the "fair use" provisions of U.S. copyright law, which do
not require getting authorization from copyright holders in certain
circumstances.
Last month, the Authors Guild, filed suit against Google, and this week the
Association of American Publishers sued on behalf of McGraw-Hill, Simon &
Schuster, John Wiley & Sons, Pearson Education and the Penguin Group.
The lawsuits argue that making a full copy of a copyright protected book,
even just for searching purposes, does not fit into the narrow exception to
the law allowed under "fair use," usually reserved for research, news
reporting and education.
"The problem, as I see it, is Google is making a complete copy of the work
and they claim this is a fair use," said Oman.
Just like a search engine
Opponents may "argue that making a full copy of a given work, even just to
index it, can never constitute fair use," Google Chief Executive Eric
Schmidt countered critics in an op-ed Tuesday in The Wall Street Journal.
"If this were so, you wouldn't be able to record a TV show to watch it
later or use a search engine that indexes billions of Web pages."
Displaying snippets of copyrighted work is "like somebody giving you
fragments of lyrics of a song," said Jonathan Zittrain, chair in Internet
Governance and Regulation at Oxford University. Also, Google's program is
providing for the greater good by exposing rarely read books, Zittrain and
others argue.
A major criterion for determining whether a particular use of copyrighted
material is fair use is how, exactly, it will be used. Though Google won't
be making any money off the sale of books and says it has no plans to put
ads on the pages with the library book search results, even Drummond
concedes the use is commercial.
The Google Print Library Project is similar to the indexing activity of
search engines, which so far no one has challenged in U.S. court, copyright
lawyer Jonathan Band wrote in an article published in E-Commerce Law &
Policy in August.
The court will look at the nature of the work, whether it is more of a
factual or creative use of the copyrighted material, said Oman. It also
will likely determine whether Google is offering a substitute to the
original copyrighted work or whether it is offering something different
enough to be considered "transformative," experts said.
"What we are doing is making a transformation of the copyrighted material,
the underlying work," argued Drummond. "We are creating an electronic
equivalent of a card catalog that helps you find" the original works.
In addition, the court will consider how much of the copyrighted material
is used, and will determine the effect on the market of the purported fair
use.
And in this corner...
Publishers, however, could say the program would hurt their ability to make
money on their own digital book distribution. In short, they could argue
that Google is being a bully.
"Is Google claiming a sort of 'eminent domain' over all published works and
if so, who elected it to do so?" Patricia Schroeder, president of the
American Association of Publishers and a former Colorado congresswoman,
questioned in a letter to the editor in Thursday's Wall Street Journal.
If Google is allowed to go ahead with its plans, more could be at stake,
worries John Battelle, author of "The Search: How Google and Its Rivals
Rewrote the Rules of Business and Transformed Our Culture."
"Who owns the rights to leverage this new innovation--the public, the
publisher or...Google?" he asked in a posting on his blog.
Legal experts say one copyright case that involved fair use could come into
play. In Kelly v. Arriba Soft, the 9th Circuit Court ruled that a search
engine did not violate copyright by displaying thumbnail images of photos
from a photographer's Web site, because the search engine was not profiting
from the images and was instead directing more traffic to the original site.
Regardless of how the Google cases go, the battle between copyright owners
who want to maintain control over their work in the digital age and
technologists who want to use the Internet to make the material more freely
available will continue to rage.
"Tension between new technologies and copyright has been with us since the
invention of the printing press. Publishers get extremely nervous when
there is a digital copy of something floating around in cyberspace
forever," said Oman. "One copy out there is enough to destroy the economic
value of a work, and the damage that can be done is so much greater."
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