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:

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.


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