Google, Copyright and the Courts

The Google Book Search project ran into anoth­er road­block last week when a group rep­re­sent­ing 400 French pub­lish­ers joined anoth­er law­suit brought ear­li­er this year in French courts. The upshot of the law­suit is essen­tial­ly the same as the suit brought by a con­sor­tium of Amer­i­can pub­lish­ers last year: They’re look­ing to put a quick end to Google’s bid to make the book uni­verse as search­able as it has made the world­wide web. Actu­al­ly, to be clear, it’s not the project itself that’s mak­ing pub­lish­ers run to the courts. Rather, it’s Google’s assump­tion that it can scan and index mil­lions of copy­right­ed books — just as it has cached bil­lions of web pages — with­out first get­ting per­mis­sion. That,
the law­suit claims, is clear copy­right infringe­ment.

Google’s defense rais­es a series of fas­ci­nat­ing (and com­pli­cat­ed) legal ques­tions about copy­right in the dig­i­tal age. The com­pa­ny’s first line of defense is to argue that the pro­gram falls under the fair use doc­trine. Here’s the basic log­ic: Although Google Book Search must index com­plete copies of books to make the print uni­verse search­able, users only get small snip­pets of copy­right­ed text in their search results, which fall under “fair use.” The key assump­tion here is that there’s a crit­i­cal dis­tinc­tion between what hap­pens on the back end and the front end. It does­n’t mat­ter that Google has indexed full digi­tial copies of text on its servers. The only thing that counts is what users see, and if users only see small snip­pets, fair use applies and no pub­lish­er per­mis­sion is required. But, just to be safe, Google will hon­or explic­it pub­lish­er requests not to include con­tent in the book search pro­gram.

Along­side the fair use defense, Google has also put for­ward a larg­er argu­ment that gets to issues we dis­cussed in the Lawrence Lessig piece. After being hit with the first major law­suit, Google took the PR offen­sive, and Eric Schmidt, the com­pa­ny’s CEO, wrote an Op-Ed in the Wall Street Jour­nal, which con­clud­ed with this:

“Imag­ine the cul­tur­al impact of putting tens of mil­lions of pre­vi­ous­ly
inac­ces­si­ble vol­umes into one vast index, every word of which is
search­able by any­one, rich and poor, urban and rur­al, First World and
Third, en toute langue — and all, of course, entire­ly for free. … This egal­i­tar­i­an­ism
of infor­ma­tion dis­per­sal is pre­cise­ly what the Web is best at;
… pre­cise­ly what copy­right law is ulti­mate­ly intend­ed to
sup­port.”

Here, Schmidt offers the reminder that copy­right law exists for the ben­e­fit of soci­ety first and fore­most. Yes, copy­right law pro­tects the rights
of authors and pub­lish­ers. But only as a means to anoth­er end — that is, pro­mot­ing cul­tur­al devel­op­ment and the growth of the cre­ative
com­mons. Schmidt’s pas­sage gives some insight into the very large ben­e­fits that Google Book Search can deliv­er. But, there is obvi­ous­ly
much more to it, and I’d high­ly rec­om­mend read­ing this lengthy fea­ture sto­ry — Scan This Book! — that appeared ear­li­er this year in the New York Times Mag­a­zine.

Some­where in the legal process, it seems, a judge will need to look at how things net out. Does it mat­ter that Google makes full dig­i­tal
copies with­out per­mis­sion if it shows only snip­pets to users? (In oth­er words, does the tra­di­tion­al taboo against mak­ing full copies of texts get over­rid­den by the prac­ti­cal fact that full copies won’t be giv­en away to users?) And does this uncon­ven­tion­al move get trumped by the fact that Google’s project offers so much social promise? The judge will take a look at this, but some­where along the way, I sus­pect, he might focus on this one issue: Ama­zon already has a sim­i­lar pro­gram under way. It index­es book con­tent to allow cus­tomers to review books
before mak­ing a pur­chase deci­son. The only dif­fer­ence is that it gets pub­lish­er per­mis­sion first. Giv­en that Ama­zon has rolled out its
“Search Inside” pro­gram fair­ly suc­cess­ful­ly, the obvi­ous ques­tion gets raised: Why can’t Google also get per­mis­sion first and sim­ply avoid putting a judge in a posi­tion to make a rul­ing that risks ful­ly open­ing up Pan­do­ra’s box? One of Google’s sec­ondary argu­ments for its pro­gram
is that, with its huge mar­ket share, Google Book Search will bring atten­tion to pub­lish­ers’ books and help them gen­er­ate new sales. If
that’s true (and it almost sure­ly is), it seems no less true that pub­lish­ers will have every incen­tive to con­tribute their works to Book
Search and get on board with the project. Mean­while, Google Book Search will grad­u­al­ly ful­fill most of its promise. Under this sce­nario,
pub­lish­ers and authors win, as does Google and soci­ety. It seems like a com­pro­mise posi­tion that makes a lot of sense.

Resources:

Copy­right’s High­way: From Guten­berg to the Celes­tial Juke­box — Excel­lent book on the his­to­ry of copy­right law and its evo­lu­tion with new tech­nolo­gies.

Stan­ford Copy­right and Fair Use — Anoth­er thor­ough resource for under­stand­ing copy­right and fair use.

The Google Print Con­tro­ver­sy: A Bib­li­og­ra­phy — You can get a range of impor­tant texts and opin­ions on this sub­ject here.

More Google inter­nal views on Book Search:

• Why We Believe in Google Print
• Mak­ing Books Eas­i­er to Find
• Buzz About Google Print and the Law­suit
  

Final­ly, I would def­i­nite­ly check out Lawrence Lessig’s 30-minute pre­sen­ta­tion on the Google Book Search con­tro­ver­sy. This will get you more than up to speed.