It amazes me that making a few lines of a book available online (Amazon has multiple pages) is considered copyright enfringement, most of the older books should have reached the public domain decades ago.Fuzzy copyright laws leave plenty of room for controversy -- and a new lawsuit -- over the search engine's right to scan books
Google's (GOOG ) plan to index millions of library books online rankled some authors and publishers from the start. Companies such as Random House and publishing groups including the Association of American University Publishers cried foul over what they said would constitute a large-scale rights violation.
Just how onerous some writers find the so-called Print for Libraries initiative was made plain on Sept. 20, when a group of authors sued the search giant. By creating and keeping digital copies of scanned books in order to attract Web site visitors, Google is "engaging in massive copyright infringement," says the complaint, which was filed in the U.S. District Court in New York and requests class-action status.
HANGING TOUGH. Further, the complaint demands that Google pay damages for each infringement, and asks the court for an injunction prohibiting the company from scanning copyrighted books without explicit permission.
The plaintiffs consist of authors Herbert Mitgang, Betty Miles, and Daniel Hoffman, and the Authors Guild trade group, an associational plaintiff. Google says it received the complaint on the afternoon of Sept. 20 afternoon. "We're going to defend against this lawsuit vigorously" says David Drummond, Google's general counsel. "We believe it has no merit."
The legal action comes as yet another setback to Google's goal of serving as a clearinghouse of a wide range of global information, legal scholars say. In addition to its publishing woes, Google has also drawn the ire of TV networks for its Google Video, which records and stores TV programs.
SPATE OF SUITS. In March, Agence France-Presse filed a suit seeking copyright infringement damages after Google put AFP headlines, photos, and story summaries on its news search page. And on Aug. 24, Perfect 10, an adult-entertainment company, filed a copyright infringement suit against Google because it put thumbnails of Perfect 10 photos on its search site. (Google has agreed to take down the links to the AFP's content.)
Worse, the authors' lawsuit adds to opposition that could derail a main component of Google's publishing effort. As part of Google Print, a plan to index millions of books, Google's Print for Libraries involves scanning copyrighted texts from three major libraries, including the entire holdings of the University of Michigan.
Google would then make parts of those books available via its search tools. Tension has been mounting since Google announced the libraries program in December. While the company was widely applauded for its plan to index library books in the public domain, the project started to vex publishers and authors when it became apparent that Google also planned to scan the books without seeking copyright holders' permission.
SHORT PAUSE. In the months following, publishers including Random House, Houghton-Mifflin, and John Wiley & Sons sent Google letters expressing concerns over the program. On May 20, the Association of American University Publishers sent its own letter, saying it felt "alarm and concern at a plan that appears to involve systematic infringement of copyright on a massive scale" (see BW Online, 5/23/05, "A Google Project Pains Publishers").
In June, the Association of American Publishers, the principal trade organization for commercial publishers, sent its own letter to Google, requesting a six-month moratorium on the project.
The breaking point, however, came after an Aug. 11 posting by Google executive Adam Smith to the Google blog, says Paul Aiken, the Guild's executive director. In that posting, Smith announced that Google would pause scanning until Nov. 1 in order to give copyright holders a chance to opt out of the print project if they chose to do so (see BW Online, 8/12/05, "Google's Plan Doesn't Scan").
"THE DON'T HAVE THE RIGHT." Although many onlookers interpreted the move as an act of goodwill by Google, authors and publishers saw red. The plan was almost identical to one that publishers had already rejected -- after Google Chief Executive Eric Schmidt proposed it during a July 1 meeting, according to Alan Adler, general counsel for the Association of American Publishers, and it ignored the counteroffer publishers had proposed just a few days earlier.
The "opt-out" notion stood out as particularly perturbing. "That's no compromise," says Aiken, "They don't have the right to determine copyright in that matter."
Pat Schroeder, chief executive of the Association of American Publishers, expressed a similar sentiment in a statement following the Aug. 11 announcement. "Google's procedure shifts the responsibility for preventing infringement to the copyright owner rather than the user," Shroeder said, "turning every principle of copyright law on its ear."
SOME STILL SILENT. While publishers wondered aloud whether negotiations could continue following Aug. 11, the Authors Guild decided enough was enough. "It became plain that Google was planning on going ahead even with the complaint of publishers," says Aiken, "We would have nowhere near the same amount of leverage [as] publishers, so we had to pursue a class action [lawsuit]."
Still, there's a chance some publishers will reach an amicable solution. Some have been in negotiations with Google throughout the summer, Schroeder says. Representatives from several publishing houses, meanwhile, would neither confirm nor deny whether their legal teams were gearing up for possible litigation.
The meat of the suit will pertain to what, exactly, constitutes "fair use," a clause in the Copyright Act that allows for the reproduction of portions of copyrighted text for specific purposes, including research.
MURKY AREA. For its part, Google has said that, to comply with fair use, it plans to show only a few sentences of text from copyrighted works on its search page. "We're essentially creating a card catalog," says Drummond. Publishers and authors say this is beside the point. Their argument: Making a digital copy of the entire book, keeping it on a Google server, and using it for commercial purposes violates the very nature of a copyright.
Intellectual-property lawyers admit there is a lot of room for interpretation. "Fair use is very murky here," says Jonathan Zittrain, chair of Internet Governance and Regulation at Oxford University. "We really don't have firm guidance from prior cases."
Joel Beres, an intellectual-property attorney for Louisville (Ky.)-based law firm Stites & Harbison, says he believes that Google has a "good argument" for fair use, since it seems unlikely that Google's use will adversely affect the market for book sales.
FAIR-USE ARGUMENT. "Essentially they are creating an index, which is something you could legitimately walk into a library and do," says Beres. The fact that Google is a for-profit company and would keep its own digital copy was "more problematic," because it owns neither the copyright nor the physical work, he says.
As far as the opt-out provision, Google maintains that it is providing it as a courtesy. "Copyright law says there are certain things [for which] you have to get permission from the copyright holder, and in some you don't" says Drummond. "This is one where you don't -- it's our fair use to use [scan the books]."
If neither Google nor publishers can reach common ground on that point, that courtesy could torpedo any hope of a peaceful resolution.
I hope Google smashes this law suit, it would set an excellent fair use precedent.
