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Google Opens Book On 'Fair Use' Rights
by Sarah Lai Stirland
When Google executives last December unveiled their grand plan to make the world's most important library holdings accessible online, several publishers felt ambushed.
Google's plan calls for scanning and posting online the contents from the library collections of Harvard, Oxford and Stanford universities, the New York Public Library, and the University of Michigan. The program is separate from Google Print, in which publishers voluntarily enroll.
"Even though ... the program was being developed during the same period as Google Print for Publishers, news of Google Print for Libraries came as a complete surprise," Peter Givler, executive director of the Association of American University Presses, wrote in a May letter to Google attorney Alexander Macgillivray. Givler said Google's plans would constitute a massive level of copyright infringement because the library holdings would be made available without first obtaining permission from copyright holders.
Three individual authors and The Authors Guild have filed a class-action lawsuit to try to stop the program, and federal district judge in New York must decide by early November whether to temporarily do so. The suit seeks damages and charges Google with willful infringement, which would make Google liable for thousands of dollars for each scanned book.
Scholars said the case could mark a pivotal point in developing copyright law and the constitutional role it plays in promoting progress in the arts and sciences. At the heart of the issue is the extent to which the law gives copyright holders control over their work and whether that control acts to promote progress.
How The Programs Work
The Print for Publishers program lets publishers voluntarily upload their books onto the Web in order to make them searchable. Publishers share revenue from advertisements that run along with the search results and could reap higher revenues from increased book sales generated by people who click through to buy the advertised books online.
The Print for Libraries program would make book contents from libraries available online. But copyrighted library books that are not also enrolled in Print for Publishers would only be available in snippets. This August, Google announced that copyright owners who do not want their books scanned and copied can notify Google. They have until Nov. 1, when Google starts scanning. The program also requires Google to give the libraries digital copies of each scanned book and to return the original books to the libraries.
Many publishing groups and authors are angry at Google for what they see as a unilateral declaration that usurps their right to decide whether and how to digitize their copyrighted works. The groups worry that the mere act of digitization could lead to unforeseen developments that could damage the markets for their content. Some publishers became so angry that they withdrew their books from Print for Publishers.
"It's because of their callous disregard for copyright law that we're pulling out of the Google Print program," Rowman & Littlefield Publishing Group President Jed Lyons said. "They have no right to take the intellectual property that belongs to somebody else and copy it in its entirety, and then to decide what to make available for free with no compensation to the owner."
Jim Gerber, Google's director of content partnerships, defended his company's behavior. Google could not disclose its plans to libraries earlier because the company was signing contracts with them until its December announcement, he said.
He added that Google's plans for library books are legal. "We firmly believe that this use of the book is fully consistent with copyright law and 'fair use,' which is meant to promote the arts and the creative arts," he said. "We believe that this type of discovery of books that may be out of print, or may be orphaned, or may be sitting on library stacks, may actually stimulate readership and purchases."
The Changing World View Of Copyright Law
The dispute has sparked a wide spectrum of commentary and legal analysis. Some observers note that the debate highlights how far astray popular perceptions of intellectual property rights have drifted from the historical roots of the law.
"In an atmosphere where intellectual property has become like real property, you have a situation like Google's that seems startling, seems like usurpation of book publishers' rights," said William Patry, a partner at the Thelen Reid & Priest law firm and a former Copyright Office official. "But in an era that was closer to the formation of copyright rights, I would argue that what Google did would be approved by all those great common law judges because ... they would have realized, in a way that we don't anymore, that Google is encouraging learning."
Still, the case law is so unsettled that some observers are predicting a fight that could dwarf, in importance and scope, the recent Supreme Court battle over the liability of file-sharing companies when their consumers commit copyright infringement.
A paper by Georgia Harper, manager of the intellectual property section of the University of Texas System's office of the general counsel, outlined a scenario where the dispute's outcome could determine the future nature of the World Wide Web, as well as the terms on which society grants broad access to knowledge where access has been limited because of obscure locations.
According to Harper, a court's decision in the dispute will affect publishers' ability to negotiate with search engines for revenue opportunities. It also will determine the pace at which millions of older copyrighted works move online. If copyright owners are given the exclusive right to decide what to digitize, the legal uncertainty over older works whose ownership is unknown or unclear could prevent Google from including them in its databases, and making them accessible and usable.
A 'Copyright Meltdown' In The Making?
The stakes are high not only for publishers but for the future methods of disseminating knowledge, some observers said.
"If [Google loses,] that actually disrupts not only the Google library project but what Google wants to do on the Web in general and what everybody wants to do on the Web," said Siva Vaidhyanathan, an assistant professor at New York University, and author of several books and papers on popular culture and copyright policy. "I am really afraid that a poorly thought-out decision could undermine a lot of what libraries want to do, too."
Vaidhyanathan contrasted the potential impact of the ongoing dispute with the Supreme Court's rulings against both the Grokster file-sharing company in June and another federal court's ruling against the Napster file-sharing service in 2001. "The fallout from this could be horrifying, where we're basically inviting a copyright meltdown that is exponentially more significant than Grokster or Napster," he said.
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