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Analysis: Courts Unlikely To Stop Google Book Copying

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.
Regardless, there is a clear legal precedent for any potential court battle between publishers and Google, and it favors the Mountain View, Calif., company. In Kelly v. Arriba Soft Corp., a 2003 case in which a photographer sued a search engine, claiming copyright infringement for displaying thumbnail images of work originally posted on his site, the Ninth Circuit found in favor of the search engine: the act of copying the material, even though it was for commercial purposes, was not exploitative and therefore was fair use.

“Everything the Ninth Circuit stated with respect to Arriba applies with equal force to the Print Library Project,” Jonathan Band, a copyright lawyer in Washington, D.C., who represents Internet companies and library associations on intellectual property matters, wrote recently in a copyright analysis of the dispute. Google’s copies of books will not replace the originals, and the company does not profit from the sale of any books it scans, he wrote. Band does not represent any entity with respect to the Google Print project.

“The Google Print Library Project will make it easier than ever before for users to locate the wealth of information buried in books,” Band concluded. “By limiting the search results to a few sentences before and after the search term, the program will not conflict with the normal exploitation of works nor unreasonably prejudice the legitimate interests of rights holders. To the contrary, it will often increase demand for copyrighted works.”

For further legal precedent, David Donahue, an associate at Fross Zelnick Lehrman & Zissu, a New York firm that specializes in trademark, copyright and unfair competition law, cites two cases involving the distribution of photocopies of articles from scientific and medical journals.

In American Geophysical Union vs. Texaco Inc., the Second Circuit Court of Appeals found in 1994 that a private company did not have the right to photocopy entire works and hand them out to its research staff. But in Williams & Wilkins Co. vs. The United States Records, an equally divided Supreme Court affirmed a lower court’s decision that it was fair use for a library to photocopy research journals and distribute them. “Google lies somewhere in between those two cases,” Donahue says.

Complicating the debate over copyright is the fact that publishers often don’t even know who has it. Their records can be incomplete, particularly if an author is deceased, in which case an estate or family member could hold the rights. A book with an unknown copyright status is known as an “orphan work.” Most works published prior to 1923 are now in the public domain, because the term of protection, the life of the author plus 70 years, is likely over. Conversely, works published in the last 30 years or so probably have an ISDN number and are tracked through a database, “so there should be little question about who holds the copyright,” Adler says. The tough part is determining the status of books published in those five decades in between. “Were talking about millions of books,” he says. “Orphan works are not in the public domain.”

The Copyright Office, at the request of Congress, has studied the “orphan works” issue and should publish its recommendations later this year, which will likely be passed into law. Publishers believe that copyright holders of orphan works, should they eventually make a claim, are entitled to a reasonable compensation, but Google using their works in the meantime shouldn’t be treated as infringement, as long as the company makes an honest effort to find them.

By now, lawsuits shouldn’t faze Google. Agence France-Presse, angry that its content appears in search results, filed a $17.5 million copyright infringement in March; adult magazine publisher Perfect 10 Inc. is asking a federal court in Los Angeles to prevent Google from displaying pictures and links to the company’s copyrighted photos; and two companies have sued Google over its practice of keyword advertising.

In the end, winning a fair use argument against Google could be tough, since its entire business model revolves around the principle. “Google couldn’t exist at all without making copies,” Litman says. “It’s a search engine. It makes copies in order to index content.”