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.”