TEXTBOOK PUBLISHERS ARE BLUFFING IN BATTLE WITH GOOGLE
by Charles Carreon
8:49 pm, September 4, 2005
You heard it here first — the textbook publisher associations will be forced to accept Google's plan to digitize a searchable database of books drawn from the Stanford, NYU, and other university libraries. This is because ultimately all publishers will win as Google boosts the value of literacy, increases the ease of scholarly research, and returns serious thinking to its proper place somewhere near the apex of human activity, and distinctly above warfare and stock-car racing. While the paper-pulp-pushers who think of themselves as Publishing's Old Guard prepare to die in the last ditch, the vanguard of the battle has already swept past them. The future is digital. Paper is dust.
Christopher T. Heun for InternetWeek wrote:
Courts Unlikely To Stop Google Book Copying Despite objections from publishers and writers, copyright law appears to be on Google's side, legal experts say. The social value of Google's initiative to digitize library books, including those protected by copyright, will likely weigh heavily in the search engine's favor. Should the growing number of publishing groups, who oppose the plan by Google Inc. to digitize the collections of some of the world’s major libraries, fail to reach an agreement and turn instead to the courts, they may have a tough road ahead of them.
Although Google may appear to violate the law by scanning, without permission, entire copies of books protected by copyright, such an act is not illegal if it is considered “fair use” of the material. How a court interprets that doctrine will decide the fate of the company’s ambitious plans, according to lawyers and law professors with knowledge of intellectual property and copyright statues. They say the most important issues for a court would be the character of Google’s activity, its adverse economic impact on the copyright holder, and the amount of material it uses in proportion to the whole and if that is key to the work. Of lesser concern is whether the company makes a reasonable effort to contact copyright holders before copying their books.
“Google would probably win” a court case, says William Fisher, who teaches intellectual property law at Harvard Law School and is the director of the Berkman Center for Internet and Society. “Google is a profit-making venture, that counts against it, but what it is doing is a highly socially valuable activity and that counts highly in its favor.”
A potential legal battle is slowly gathering strength. The Text and Academic Authors Association this week joined the Association of Learned and Professional Society Publishers in publicly stating it is ready to take on Google in the courtroom.
The two sides are playing a game of chicken over who should dictate what works are digitized: Google says it will not scan any titles publishers tell it not to; publishers insist it should work the other way around. “The solution we’d like to see [Google] heading toward is to say here is a list of books we’d like to include, may we have permission to do so,” says Peter Givler, the executive director of the Association of American University Presses. The scanning has stopped temporarily but will resume in November.
One law professor doesn’t think that’s necessary. “The principle that Google should have to ask [for permission] is proving untenable,” says Jessica Litman, a professor at Wayne State University Law School who has published a book on protecting intellectual property on the Internet, “Digital Copyright.” “The opt-out mechanism is pretty reasonable.” The source of the squabble is the Google Print Library Project, which aims to scan and store in the company’s search database copyrighted books from the libraries of Harvard, Stanford, the University of Michigan, the University of Oxford and the New York Public Library. Google’s ultimate goal, according to its Web site, is to build a “comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers find new readers.”
If a work included in a search query is covered by a copyright, Google limits the amount of text shown to a few sentences adjacent to the search term; the full text is available for any book with an expired copyright now considered public domain – for instance, a novel published in 1905.
Sounds fair enough. But publishers don’t see it that way. They look at the library project not as an altruistic endeavor but a profit-making venture that will harm their own business. As proof they point out that Google, which relies on advertising for the vast majority of its revenue – a record $1.4 billion for the quarter that ended June 30 – allows sponsored links on the search results page for Google Print. It’s enough to make them wonder: if one search engine can appropriate a publisher’s intellectual property, then isn’t it logical to assume that others, like Yahoo! and Microsoft, will be next?
“If copyright law worked the way Google would like to see it working, then everyone in the world would be able to use the material unless the copyright holder explicitly told them not to, and even then it would be OK,” says Allan Adler, the vice president for legal and government affairs for the Association of American Publishers. “That would be a very strange copyright system.”
Regardless, there is a clear legal precedent for any potential court battle between publishers and Google, and it favors the Mountain View, Calif., company. In Kelly v. Arriba Soft Corp., a 2003 case in which a photographer sued a search engine, claiming copyright infringement for displaying thumbnail images of work originally posted on his site, the Ninth Circuit found in favor of the search engine: the act of copying the material, even though it was for commercial purposes, was not exploitative and therefore was fair use. “Everything the Ninth Circuit stated with respect to Arriba applies with equal force to the Print Library Project,” Jonathan Band, a copyright lawyer in Washington, D.C., who represents Internet companies and library associations on intellectual property matters, wrote recently in a copyright analysis of the dispute. Google’s copies of books will not replace the originals, and the company does not profit from the sale of any books it scans, he wrote. Band does not represent any entity with respect to the Google Print project.
“The Google Print Library Project will make it easier than ever before for users to locate the wealth of information buried in books,” Band concluded. “By limiting the search results to a few sentences before and after the search term, the program will not conflict with the normal exploitation of works nor unreasonably prejudice the legitimate interests of rights holders. To the contrary, it will often increase demand for copyrighted works.”
For further legal precedent, David Donahue, an associate at Fross Zelnick Lehrman & Zissu, a New York firm that specializes in trademark, copyright and unfair competition law, cites two cases involving the distribution of photocopies of articles from scientific and medical journals.
In American Geophysical Union vs. Texaco Inc., the Second Circuit Court of Appeals found in 1994 that a private company did not have the right to photocopy entire works and hand them out to its research staff. But in Williams & Wilkins Co. vs. The United States Records, an equally divided Supreme Court affirmed a lower court’s decision that it was fair use for a library to photocopy research journals and distribute them. “Google lies somewhere in between those two cases,” Donahue says.
Complicating the debate over copyright is the fact that publishers often don’t even know who has it. Their records can be incomplete, particularly if an author is deceased, in which case an estate or family member could hold the rights. A book with an unknown copyright status is known as an “orphan work.” Most works published prior to 1923 are now in the public domain, because the term of protection, the life of the author plus 70 years, is likely over. Conversely, works published in the last 30 years or so probably have an ISDN number and are tracked through a database, “so there should be little question about who holds the copyright,” Adler says. The tough part is determining the status of books published in those five decades in between. “Were talking about millions of books,” he says. “Orphan works are not in the public domain.”
The Copyright Office, at the request of Congress, has studied the “orphan works” issue and should publish its recommendations later this year, which will likely be passed into law. Publishers believe that copyright holders of orphan works, should they eventually make a claim, are entitled to a reasonable compensation, but Google using their works in the meantime shouldn’t be treated as infringement, as long as the company makes an honest effort to find them.
By now, lawsuits shouldn’t faze Google. Agence France-Presse, angry that its content appears in search results, filed a $17.5 million copyright infringement in March; adult magazine publisher Perfect 10 Inc. is asking a federal court in Los Angeles to prevent Google from displaying pictures and links to the company’s copyrighted photos; and two companies have sued Google over its practice of keyword advertising.
In the end, winning a fair use argument against Google could be tough, since its entire business model revolves around the principle. “Google couldn’t exist at all without making copies,” Litman says. “It’s a search engine. It makes copies in order to index content.