The Google Book Search project ran into anothÂer roadÂblock last week when a group repÂreÂsentÂing 400 French pubÂlishÂers joined anothÂer lawÂsuit brought earÂliÂer this year in French courts. The upshot of the lawÂsuit is essenÂtialÂly the same as the suit brought by a conÂsorÂtium of AmerÂiÂcan pubÂlishÂers last year: They’re lookÂing to put a quick end to Google’s bid to make the book uniÂverse as searchÂable as it has made the worldÂwide web. ActuÂalÂly, to be clear, it’s not the project itself that’s makÂing pubÂlishÂers run to the courts. Rather, it’s Google’s assumpÂtion that it can scan and index milÂlions of copyÂrightÂed books — just as it has cached bilÂlions of web pages — withÂout first getÂting perÂmisÂsion. That,
the lawÂsuit claims, is clear copyÂright infringeÂment.
Google’s defense raisÂes a series of fasÂciÂnatÂing (and comÂpliÂcatÂed) legal quesÂtions about copyÂright in the digÂiÂtal age. The comÂpaÂny’s first line of defense is to argue that the proÂgram falls under the fair use docÂtrine. Here’s the basic logÂic: Although Google Book Search must index comÂplete copies of books to make the print uniÂverse searchÂable, users only get small snipÂpets of copyÂrightÂed text in their search results, which fall under “fair use.” The key assumpÂtion here is that there’s a critÂiÂcal disÂtincÂtion between what hapÂpens on the back end and the front end. It doesÂn’t matÂter that Google has indexed full digiÂtial copies of text on its servers. The only thing that counts is what users see, and if users only see small snipÂpets, fair use applies and no pubÂlishÂer perÂmisÂsion is required. But, just to be safe, Google will honÂor explicÂit pubÂlishÂer requests not to include conÂtent in the book search proÂgram.
AlongÂside the fair use defense, Google has also put forÂward a largÂer arguÂment that gets to issues we disÂcussed in the Lawrence Lessig piece. After being hit with the first major lawÂsuit, Google took the PR offenÂsive, and Eric Schmidt, the comÂpaÂny’s CEO, wrote an Op-Ed in the Wall Street JourÂnal, which conÂcludÂed with this:
“ImagÂine the culÂturÂal impact of putting tens of milÂlions of preÂviÂousÂly
inacÂcesÂsiÂble volÂumes into one vast index, every word of which is
searchÂable by anyÂone, rich and poor, urban and rurÂal, First World and
Third, en toute langue — and all, of course, entireÂly for free. … This egalÂiÂtarÂiÂanÂism
of inforÂmaÂtion disÂperÂsal is preÂciseÂly what the Web is best at;
… preÂciseÂly what copyÂright law is ultiÂmateÂly intendÂed to
supÂport.”
Here, Schmidt offers the reminder that copyÂright law exists for the benÂeÂfit of sociÂety first and foreÂmost. Yes, copyÂright law proÂtects the rights
of authors and pubÂlishÂers. But only as a means to anothÂer end — that is, proÂmotÂing culÂturÂal develÂopÂment and the growth of the creÂative
comÂmons. Schmidt’s pasÂsage gives some insight into the very large benÂeÂfits that Google Book Search can delivÂer. But, there is obviÂousÂly
much more to it, and I’d highÂly recÂomÂmend readÂing this lengthy feaÂture stoÂry — Scan This Book! — that appeared earÂliÂer this year in the New York Times MagÂaÂzine.
SomeÂwhere in the legal process, it seems, a judge will need to look at how things net out. Does it matÂter that Google makes full digÂiÂtal
copies withÂout perÂmisÂsion if it shows only snipÂpets to users? (In othÂer words, does the traÂdiÂtionÂal taboo against makÂing full copies of texts get overÂridÂden by the pracÂtiÂcal fact that full copies won’t be givÂen away to users?) And does this unconÂvenÂtionÂal move get trumped by the fact that Google’s project offers so much social promise? The judge will take a look at this, but someÂwhere along the way, I susÂpect, he might focus on this one issue: AmaÂzon already has a simÂiÂlar proÂgram under way. It indexÂes book conÂtent to allow cusÂtomers to review books
before makÂing a purÂchase deciÂson. The only difÂferÂence is that it gets pubÂlishÂer perÂmisÂsion first. GivÂen that AmaÂzon has rolled out its
“Search Inside” proÂgram fairÂly sucÂcessÂfulÂly, the obviÂous quesÂtion gets raised: Why can’t Google also get perÂmisÂsion first and simÂply avoid putting a judge in a posiÂtion to make a rulÂing that risks fulÂly openÂing up PanÂdoÂra’s box? One of Google’s secÂondary arguÂments for its proÂgram
is that, with its huge marÂket share, Google Book Search will bring attenÂtion to pubÂlishÂers’ books and help them genÂerÂate new sales. If
that’s true (and it almost sureÂly is), it seems no less true that pubÂlishÂers will have every incenÂtive to conÂtribute their works to Book
Search and get on board with the project. MeanÂwhile, Google Book Search will gradÂuÂalÂly fulÂfill most of its promise. Under this sceÂnario,
pubÂlishÂers and authors win, as does Google and sociÂety. It seems like a comÂproÂmise posiÂtion that makes a lot of sense.
Resources:
CopyÂright’s HighÂway: From GutenÂberg to the CelesÂtial JukeÂbox — ExcelÂlent book on the hisÂtoÂry of copyÂright law and its evoÂluÂtion with new techÂnoloÂgies.
StanÂford CopyÂright and Fair Use — AnothÂer thorÂough resource for underÂstandÂing copyÂright and fair use.
The Google Print ConÂtroÂverÂsy: A BibÂliÂogÂraÂphy — You can get a range of imporÂtant texts and opinÂions on this subÂject here.
More Google interÂnal views on Book Search:
FinalÂly, I would defÂiÂniteÂly check out Lawrence Lessig’s 30-minute preÂsenÂtaÂtion on the Google Book Search conÂtroÂverÂsy. This will get you more than up to speed.
In 2001, StanÂford law proÂfesÂsor Lawrence Lessig pubÂlished The Future of Ideas: The Fate of the ComÂmons in a ConÂnectÂed World. Here, Lessig launched a camÂpaign against AmerÂiÂcan copyÂright law, arguÂing that it has become so restricÂtive that it stiÂfles culÂturÂal innoÂvaÂtion and social progress .… which underÂmines the origÂiÂnal point of copyÂright law. Back in 1787, the foundÂing fathers includÂed the “copyÂright clause” in the AmerÂiÂcan conÂstiÂtuÂtion, lookÂing to give authors a short-term incenÂtive to innoÂvate and ultiÂmateÂly conÂtribute to the pubÂlic good. (ArtiÂcle I, SecÂtion 8 empowÂers ConÂgress “To proÂmote the Progress of SciÂence and useÂful Arts, by securÂing for limÂitÂed Times to Authors and InvenÂtors the excluÂsive Right to their respecÂtive WritÂings and DisÂcovÂerÂies.”). At the outÂset, copyÂright law proÂtectÂed forms of expresÂsion — and let authors profÂit from them — for a minÂiÂmum of 14 years and a maxÂiÂmum of 28. Then, the mateÂrÂiÂal went into the pubÂlic domain. But over time, the proÂtecÂtions placed on culÂturÂal expresÂsion have been extendÂed, and now works are proÂtectÂed so long as an author is alive, and then anothÂer 70 years. That’s potenÂtialÂly up to 140 years or more. All of this has hapÂpened because ConÂgress has been sucÂcessÂfulÂly lobÂbied by large media corÂpoÂraÂtions (e.g. DisÂney), wantÂiÂng to monÂeÂtize their media assets (think, MickÂey Mouse) indefÂiÂniteÂly.
