Oct 3 2005

Google lawsuit begins; fair use

The inevitable lawsuit has been filed against Google. The Authors’ Guild and others assert in the complaint that the Google Print Project infringes their copyrights. That lawsuit should succeed. As portrayed in the statements of the company, the Google project broadly infringes the copyrights of numerous companies and individuals for Google’s own commercial purposes.

As one author describes it, Google will make digital copies of all the books in the University of Michigan’s collection (and other libraries) and make them searchable online. Works that are no longer copyrighted are no problem, nor are works licensed by their owners for this purpose. Thus, Yahoo's recently announced projects on digitizing works is very different from the Google project.

Google has no permission from copyright owners to do this for other works. Google’s agreements with libraries are not enough - the libraries do not own the copyrights. Thus the simple infringement claim is stated by Nick Taylor, President of the Authors’ Guild: “This is a plain and brazen violation of copyright law. It's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.”

Google’s defense?

The company claims that its commercial use of the property of others is “fair use,” permitted by the Copyright Act because the searching public will only see limited portions of the work when their search is completed. Besides, Google claims, copyright owners should like our plan - it will distribute works and benefit the public interest. If you don’t like it, you should tell us. Each copyright owner who objects will have her rights respected.

As I have said, this argument espouses a radical view of copyright law that flips copyright on its head and that is held by a group that is properly described as “rights restrictors.” Google argues that a commercial company, for its own commercial purposes, can copy and distribute the property of another person without the property owner’s permission simply because if (Google) believes that its commercial interests will benefit and in its view of the public interest, if it can obtain assistance from entities (e.g., libraries) who do not own the relevant copyrights.

Jonathon Band, a frequent supporter of expansive views of fair use, adopts the company line. I would not encourage others to do so.

The company argues that its commercial use is lawful under decision in Arriba Soft, a Ninth Circuit Court of Appeals decision relating to a visual search engine that briefly copied online photos, transformed them into thumbnail images, and used those images to provide links in its online search system to the posted images. The court held that the “intermediate copies” that were briefly made to create the thumbnails and the thumbnails themselves were fair use. It did not generally validate or authorize making digital copies for commercial purposes. It did not suggest that a company could continue to use exact digital copies of another person’s property with impunity.

Indeed, I would have thought that the Supreme Court’s approach in Grokster">, would have laid this expansive claim to rest. In copyright law, there is a balance between property rights owners and others, but that balance does not imply that the non-owners can trample property rights. Indeed, in Tasini, the Supreme Court held that it was infringement for the publisher of magazines to reproduce those magazines in digital, online form. This trampled on a market that copyright law gave the copyright owner the right to control - online publication. Google does not even have that much of a relationship to the copyrighted works.

There are so many differences between Arribasoft and the Google commercial scheme that the reliance on that case is difficult to even contemplate. The differences at least include:

  • All the authors in Arriba Soft had placed their photos online, while many of the authors in Google have never done so.
  • The defendant in Arriba Soft did not keep the original copies and continue to use them, but used only the highly modified, transformed thumbnail images, while Google plans to keep and make available copies of the original works.
  • The thumbnail images were not used for or capable of serving the same purposes of the originals, while the texts copied by Google will serve the same searchability function that the original texts would serve if placed online.

These and other differences make mystifying the argument that the massive copying involved in the Google project constitutes fair use.

But these are legal points. The further question is whether, as a matter of policy, Google should have the right to do what it wants? I think not. On the one hand, this large company desires to make a massive number of copies of other persons’ property for its own profit. On the other hand, the authors and publishers that own the property rights have been given exclusive rights to copy or distribute copies of their works as part of a statutory scheme that intends to provide authors with incentive to create new works. The incentive lies in their ability to control how the work is distributed and, even, when or if it is distributed. This is exactly the right that Google plans to take away.

And what about the libraries that assist Google? They have special statutory rights under the Copyright Act but none of those rights authorize the deal they are making with Google. It will be interesting to see if the Author’s Guild brings a claim of inducement under Grokster. But that will be for another day.

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