Does Google Library violate copyright?
SPARC Open Access Newsletter, issue #90
October 2, 2005
by Peter Suber
The Authors Guild has sued Google for massive copyright infringement.  If you don't already know the basic story, skip most of the media coverage and go straight to the sources:

The Authors Guild press release (September 20)
http://www.authorsguild.org/news/sues_google_citing.htm

Google's public response (September 20)
http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html

To save time, I'd like to assume that the basic facts about the lawsuit are already familiar so that I can jump ahead to some analysis.

First we have to get clear on two terms.  "Google Publisher" is the name of the project to scan books that publishers voluntarily offer Google to scan.  "Google Library" is the name of the project to scan books in certain libraries, with the consent of the libraries but not necessarily the consent of the publishers.  Both are parts of the larger "Google Print" project, which is to scan full-text print materials for adding to the Google search index.  For publishers, Google Publisher is opt-in, while Google Library is opt-out.  Google Library covers books under copyright as well as books in the public domain.  The Authors Guild lawsuit is about the copyrighted portion of Google Library. 

Google Publisher
http://print.google.com/googleprint/publisher.html

Google Library
http://print.google.com/googleprint/library.html

For participating books in Google Publisher, and public-domain books in Google Library, Google will display full-text pages.  For copyrighted books in Google Library, Google will display only fair-use snippets that match the user's searchstring.  Here are some sample screen shots to show the difference.
http://print.google.com/googleprint/screenshots.html

Do the members of the Authors Guild (AG) think that Google Library will undermine sales of their books?  Do they believe that Google Library will *injure* them?  Or are they merely trying to enforce a rule against copying, even beneficial copying?

I've seen a plausible case for copyright infringement by Google Library --which, by the way, is opposed by a plausible case against copyright infringement (more below).  But I haven't yet seen a plausible case that the authors or publishers will be injured by Google Library.  On the contrary, publishing groups who address this, like the ALPSP, tend to concede that the program will benefit them but insist that the rules be followed anyway.  The AG press release doesn't mention harm or injury.  Deep within the complaint that it filed in court, however, it alleges the members of the class-action suit have suffered "depreciation in the value and ability to license and sell their Works [and] lost profits and/or opportunities" (p. 10).  The complaint seeks to collect damages for these losses.

If the AG mentions losses merely as a formality --which is how it looks-- and covertly concedes that Google Library will increase book sales, then the suit might still make sense.  But instead of trying to stop a continuing injury, the AG would be trying to extract a settlement.  It may want a cut of Google's ad revenue on top of increased sales.  If so, then (as I said last month) we're watching a shakedown. 

If the AG really believes that Google Library will hurt book sales, then how does it explain the fact that publishers continue to volunteer their books to Google Publisher?  Participating publishers know from experience that Google indexing increases sales.  Perhaps the authors doubt the evidence, which is still fairly new.  Perhaps they'd rather control every copy than have increased visibility and sales.  Perhaps they hope Google will pay them to license their content for indexing.  In any case, if the authors' fear of lost sales is real, and not put on to pad their legal complaint, then it would be nice to know whether it's an evidence-based fear or a faith-based fear.  If their concern is amenable to evidence, then they should rein in the lawyers and study the mounting evidence.  If they have a faith-based fear, then their ignorance is hurting everyone including themselves.  But of course they still have their right to sue.

If everybody followed the evidence and self-interest, this would be a win-win-win situation.  Authors and publishers would benefit from increased visibility and sales.  Google would benefit from increased traffic and ad revenue.  Users would benefit from increased search-access to the world's book literature. 

But instead we have a lawsuit to derail a win-win-win situation.  What are its prospects?

Here are main legal arguments for the Authors Guild (AG):

(1) Google's opt-out policy for publishers reverses the usual burden on those who want to copy material under copyright.  Google must seek permission first, i.e. offer opt-in instead of opt-out.
(2) Even though Google plans to display only snippets of copyrighted books, it will display a snippet for every search.  Systematic searchers could patch together significant portions of a book.
(3) To index the text and produce snippets, Google will have to copy the full-text.  Fair use is traditionally limited to much smaller excerpts.
(4) Google will profit from its copying and indexing.  (It will put ads on search-return pages, as it does with its other searches.)  This is a commercial use.

The main legal arguments for Google and against the AG are:

(1) Google indexing will help sell books.  This isn't just a footnote unrelated to the legal merits.  It goes directly to the statutory test of fair use, one of whose elements is "the effect of the use upon the potential market for or value of the copyrighted work" (17 USC 107).
(2) Google will only display snippets of copyrighted books.  It's true that different fair-use snippets could be patched together, but that's true of every kind of fair use.  If users really wanted free access to full-text, it would be much easier to visit a public library than to find and assemble all the right snippets.
(3) It's true that Google has to make full-text copies in order to index the text and offer snippets.  But nevertheless (it can't be repeated often enough) Google will only display fair-use snippets.  Moreover, every ISP makes full-text copies without prior permission when passing along browser requests, and every browser makes full-text copies without prior permission when displaying a page of an online document.  It's true that the books in question are not already online, but that is less salient than the fact that intermediate copies are allowed even for copyrighted content. 
(4) Opt-out is the accepted standard for indexing web content.  If search engines had to seek permission before indexing copyrighted content online (i.e. offer opt-in instead of opt-out), then search engines would be impossible.  Again, it's true that the books in question are not already online, but that is less salient than the fact that opt-out search crawling is allowed even for copyrighted content.
(5) The four arguments above are reasons to think that the Google Library copying is protected as fair use.  (It doesn't matter whether any the arguments suffice on their own or whether they suffice only in combination.)  That's critical in its own right, but just as important for what follows.  If the copying is fair use, then no prior permission is needed.  If no prior permission is needed, then opt-out is perfectly acceptable.
(6) It's true that Google will profit from its copying.  But it also profits from the full-text copying and indexing of copyrighted content that its crawlers discover online.  Morever, selling ads next to fair-use snippets is very different from selling copies of the texts themselves, something Google has no intention of doing.  Journals and magazines may quote fair-use snippets and sell ads on the same pages without violating the law.

If the case goes to trial, some of these arguments are likely to be more central than others.  If I had to boil down this summary to the most essential elements, I'd put it this way.  The authors --and the publishers who share the same grievance-- are getting far too much mileage from the claim that Google's opt-out policy turns the usual copyright rule on its head.  This claim has a deceptive strength.  It's strong because it would be valid for most full-text copying.  It's deceptive because it assumes without proof that the Google copying is not fair use.  Hence it begs the question at the heart of the lawsuit.  If the Google copying is fair use, then no prior permission is needed and the opt-out policy is justified.  Moreover, Google has several good arguments that its copying really is fair use, most notably its argument that its indexing will enhance rather than diminish book sales and its analogy to long-accepted opt-out policies for search-engine indexing of other copyrighted content.

On the merits, it's an important question to settle.  But I admit that I'm not very comfortable having any important copyright question settled in today's legal climate of piracy hysteria and maximalist protection --a new world order getting old fast.

Google's wealth is another wildcard.  On the one hand, it makes Google one of the deepest of deep pockets.  There could hardly be a more attractive target for a class action suit.  (Did you know that every act of willful infringement could net the plaintiffs $150,000?)  On the other hand, Google's wealth enables it to defend itself.  If Google were easy to intimidate, then it would have backed down long before this.  The company's wealth is a reason for it to settle and a reason for it not to settle. 

Note that libraries don't have Google's wealth and are easier to intimidate.  The libraries that have agreed to let Google scan their books could be named as co-defendants for contributory infringement, but so far have not been.  As long as this suit is pending, no other library is likely to volunteer to let Google in the door.

The Authors Guild
http://www.authorsguild.org/

The Authors Guild complaint, submitted to the US District Court for the Southern District of New York
http://www.boingboing.net/images/AuthorsGuildGoogleComplaint1.pdf

The Authors Guild talking points on the lawsuit, in an email to members, September 23, 2005
http://www.authorsguild.org/news/charity_handy_talking.htm

The fair-use section of the US Copyright Act (17 USC 107)
http://www.title17.com/contentStatute/chpt01/sec107.html

* Here are some news stories and comments from September on the AG lawsuit.  In general I've avoided listing news stories that merely summarize the AG complaint and the Google response.  Because general OA news was so thick in September, I didn't have time to post many of these Google stories to my blog.

For expert opinion in support of the AG, see (from the articles cited below) Eric Goldman (law prof), 9/18; Solveig Singleton, 9/21; and Siva Vaidhyanathan, 9/22.  There are other anti-Google legal opinions, esp. from the AAP, AAUP, and ALPSP, but not from the last month.

For expert opinion in support of Google, see Jonathan Band (lawyer), n.d.; Laura Quilter (lawyer), 8/13; William Fisher (law prof) and Jessica Litman (law prof) as quoted in Christopher Heun, 9/2; Danny Sullivan, 9/7 and 9/20; Hans-Peter Brøndmo, 9/19; Fred von Lohmann (lawyer), 9/20, 9/21; Susan Crawford (law prof), 9/21; Lawrence Solum (law prof), 9/21; Tim O'Reilly, 9/21; Lawrence Lessig (law prof), 9/22; William Patry (lawyer, former counsel to the House Judiciary Committee), 9/23; Wendy Boswell, 9/24; Julie Hilden (lawyer), 9/26; and Jack Balkin (law prof), 9/28.

Mike Langberg, Google's libraries project facing writers' block, Mercury News, October 2, 2005.
http://www.mercurynews.com/mld/mercurynews/12798229.htm
http://www.earlham.edu/~peters/fos/2005_10_02_fosblogarchive.html#a112826097498627128

Anon., Google On-Line Library Project Challenged, The CalTrade Report, September 30, 2005.
http://www.caltradereport.com/eWebPages/page-two-1128053354.html
http://www.earlham.edu/~peters/fos/2005_09_25_fosblogarchive.html#a112809076290970675

Jeffrey Young, Authors' Group Sues Google Over Library-Scanning Project, Chronicle of Higher Education, September 30, 2005.
http://chronicle.com/weekly/v52/i06/06a03802.htm

Crimson Staff, Technological Tomes, Harvard Crimson, September 29, 2005.
http://www.thecrimson.com/today/article508675.html

Jack Balkin, Search Me. Please.  Balkinization, September 28, 2005.
http://balkin.blogspot.com/2005/09/search-me-please.html
http://www.earlham.edu/~peters/fos/2005_09_25_fosblogarchive.html#a112808870368170509

Nick Webb, Digitalization, Google and all that...., EPS Google Debate, September 28, 2005.
http://googledebate.epsltd.com/contributions/viewContribution.asp?contributionID=73
http://www.earlham.edu/~peters/fos/2005_09_25_fosblogarchive.html#a112801675870155679

Tim O'Reilly, Search and Rescue, New York Times, September 28, 2005.
http://www.nytimes.com/2005/09/28/opinion/28oreilly.html
http://www.earlham.edu/~peters/fos/2005_09_25_fosblogarchive.html#a112799685455182747

Julie Hilden, Authors Sue Google Over Its "Print for Libraries" Project: Will the Suit Succeed? Should It? And Why, As An Author, I'm Opting Out of Any Class Action, Writ, September 26, 2005.
http://writ.news.findlaw.com/hilden/20050926.html
http://www.earlham.edu/~peters/fos/2005_09_25_fosblogarchive.html#a112809037032760322

Daniel B. Wood, Copyright lawsuit challenges Google's vision of digital 'library', Christian Science Monitor, September 26, 2005.
http://www.csmonitor.com/2005/0926/p03s01-ussc.html

On September 25, the Text and Academic Authors Association (TAA) announced that it favors dialogue over litigation to resolve these issue, but understands and supports the Authors Guild's decision to sue.
http://press.arrivenet.com/education/article.php/697593.html
A month earlier the TAA made virtually the same criticism of Google Library as the Authors Guild.
http://www.taaonline.net/mediaroom/taapress19.pdf

Oliver Marre, Authors aghast at Google's plan to put them online, The Independent, September 26, 2005.
http://news.independent.co.uk/people/pandora/article315116.ece

Xeni Jardin, You authors are saps to resist Googling, Los Angeles Times, September 25, 2005.
http://www.latimes.com/news/opinion/commentary/la-op-mediavore25sep25,0,185479.story?coll=la-news-comment-opinions
http://www.earlham.edu/~peters/fos/2005_09_25_fosblogarchive.html#a112766128534222052

Wendy Boswell, Google Sued by Authors Guild, About Web Search, September 24, 2005.
http://websearch.about.com/b/a/205073.htm

William Patry, Google Revisited, Patry Copyright Blog, September 23, 2005.
http://williampatry.blogspot.com/2005/09/google-revisited.html

Ben Charmy, Google Print Pressures Libraries, PC Magazine, September 23, 2005.
http://www.pcmag.com/article2/0,1895,1862933,00.asp

Lawrence Lessig, Google Sued, Lessig Blog, September 22, 2005.
http://www.lessig.org/blog/archives/003140.shtml
http://www.earlham.edu/~peters/fos/2005_09_18_fosblogarchive.html#a112748486452576513

Siva Vaidhyanathan, Google:  Betting the Company, Sivacracy,  September 22, 2005.
http://www.nyu.edu/classes/siva/archives/002102.html

Fred von Lohmann, Google's Card Catalog Should Be Left Open, EFF, September 21, 2005.
http://www.eff.org/news/archives/2005_09.php#003994
http://www.earlham.edu/~peters/fos/2005_09_18_fosblogarchive.html#a112740157317262027

John Blossom, Google Sued by Authors: When is "May I" Necessary? Commentary, September 21, 2005.
http://shore.com/commentary/weblogs/2005_09_01_m_archive.html#112731158919055752
http://www.earlham.edu/~peters/fos/2005_09_18_fosblogarchive.html#a112739903873134116

Lawrence Solum, Google Print Lawsuit & Class Certification, Legal Theory Blog, September 21, 2005.
http://lsolum.blogspot.com/archives/2005_09_01_lsolum_archive.html#112731037749432196
http://www.earlham.edu/~peters/fos/2005_09_25_fosblogarchive.html#a112808961523796300

James Hilton, University of Michigan statement on Google library project, September 21, 2005.  Defending Michigan's participation and the project's lawfulness.
http://www.umich.edu/news/?Releases/2005/Sep05/r092105
http://www.earlham.edu/~peters/fos/2005_09_18_fosblogarchive.html#a112739755956902570

Mike Madison, Google Sued:  Books Disappearing, Conglomerate, September 21, 2005.
http://www.theconglomerate.org/2005/09/google_sued_boo.html

Tim O'Reilly, Authors Guild Suit, and Google's Response: My Thoughts, O'Reilly Radar, September 21, 2005.
http://radar.oreilly.com/archives/2005/09/authors_guild_suit_and_googles.html

Solveig Singleton, Google suit: Copyright Infringement, IP Central, September 21, 2005
http://weblog.ipcentral.info/archives/2005/09/google_suit_cop.html

Susan Crawford, Why Google is Right, a blog posting, September 21, 2005.   Crawford is an Assistant Professor of Law at Cardozo Law School.
http://scrawford.blogware.com/blog/_archives/2005/9/21/1248170.html

Fred von Lohmann, Authors Guild Sues Google, Deep Links, September 20, 2005.
http://www.eff.org/deeplinks/archives/003992.php

Gary Price, Google's Library Scanning Project Heads to Court, SearchDay, September 20, 2005.  With a postscript by Danny Sullivan.
http://blog.searchenginewatch.com/blog/050920-192319

Hans-Peter Brøndmo, Is Copyright Wrong? ClickZ, September 19, 2005.
http://www.clickz.com/experts/brand/sense/article.php/3549541
http://www.earlham.edu/~peters/fos/2005_09_18_fosblogarchive.html#a112713588402439694

Anick Jesdanun, Google scanning books onto Internet, Associated Press (this copy in Wired News), September 19, 2005.
http://www.wired.com/news/business/0,1367,68901,00.html?tw=wn_tophead_10
http://www.earlham.edu/~peters/fos/2005_09_18_fosblogarchive.html#a112713544558791309

Eric Goldman, My Comments on Google Print, Technology and Marketing Law  Blog, September 18, 2005.
http://blog.ericgoldman.org/archives/2005/09/my_comments_on.htm

Pat Kane, Google Print: commonwealth or enclosure? EPS, September 13, 2005.  Part of the EPS debate on the Google book-scanning project.
http://googledebate.epsltd.com/contributions/viewContribution.asp?contributionID=69
http://www.earlham.edu/~peters/fos/2005_09_11_fosblogarchive.html#a112687890166301124

Philip Jones, ALPSP calls for 'urgent' Google meeting, Information World Review, September 16, 2005.
http://www.iwr.co.uk/information-world-review/news/2142402/alpsp-calls-urgent-google
http://www.earlham.edu/~peters/fos/2005_09_11_fosblogarchive.html#a112687816099211810

Danny Sullivan, Legal Experts Say Google Library Digitization Project Likely OK; Will It Revolve Around Snippets? Search Engine Watch, September 7, 2005.
http://blog.searchenginewatch.com/blog/050907-092645
http://www.earlham.edu/~peters/fos/2005_09_04_fosblogarchive.html#a112618765610329090

Jonathan Band, The Google Print Library Project: A Copyright Analysis, apparently a preprint, n.d. After a detailed analysis of the four factors of fair use under U.S. law, Band concludes that Google's scanning of copyrighted books is lawful.
http://www.policybandwidth.com/doc/googleprint.pdf
http://www.earlham.edu/~peters/fos/2005_09_04_fosblogarchive.html#a112614171871591517

Electronic Publishing Services (EPS) is running an online debate on this question: "Google and the Book Publishers: Is the Age of Search bringing exciting new opportunities for publishers, or is it the beginning of the end?" Unlike most other EPS initiatives, this one is OA. The first contribution is from Adam Hodgkin, founder of xrefer.
http://www.googledebate.com/
http://googledebate.epsltd.com/contributions/viewContribution.asp?contributionID=67
http://www.earlham.edu/~peters/fos/2005_09_04_fosblogarchive.html#a112602857420911263

David Utter, Google Print Probably Legal, WebProNews, September 5, 2005.
http://www.webpronews.com/insidesearch/insidesearch/wpn-56-20050905GooglePrintProbablyLegal.html
http://www.earlham.edu/~peters/fos/2005_09_04_fosblogarchive.html#a112601566618600074

Christopher T. Heun, Courts Unlikely To Stop Google Book Copying, InternetWeek, September 2, 2005.  Building on the opinions of law professors William Fisher and Jessica Litman.
http://www.internetweek.com/170700329
http://www.earlham.edu/~peters/fos/2005_08_28_fosblogarchive.html#a112575805541054934

Laura Quilter, Google and Not-For-Profit Libraries, LQuilter blog, August 13, 2005.
http://lquilter.net/blog/archives/2005/08/13/google-not-for-profit-libraries

* Postscript.  The same Authors Guild that is suing Google today tried to stop Amazon from selling used books in 2000 and then again in 2002.
http://www.nytimes.com/2002/04/10/technology/10BOOK.html
http://www.wired.com/news/business/0,1367,51676,00.html
http://news.com.com/2100-1017-880022.html
http://dash.harvard.edu/bitstream/handle/1/3997185/suber_news4-15-02.html

It also protested Amazon's Search Inside the Book service in 2003, on nearly the same grounds that it now protests Google Library.
http://www.earlham.edu/~peters/fos/2003_10_26_fosblogarchive.html#a106726739384375925

If it couldn't stop Amazon Search Inside, at least it wanted compensation for authors every time an Amazon user viewed an online book snippet.
http://select.nytimes.com/gst/abstract.html?res=F70D16FA34580C728EDDAE0894DB404482
http://www.earlham.edu/~peters/fos/2003_07_20_fosblogarchive.html#a105879594603084228

It also wanted taxpayers to pay authors royalties every time their books were borrowed from public libraries.
http://www.earlham.edu/~peters/fos/newsletter/04-22-02.htm

It also supported the Sonny Bono Copyright Term Extension Act.
http://www.teleread.org/blog/2004_03_28_archive.html#108097411556108636

If fair use, first sale, or limited terms were new ideas in copyright law, the AG would oppose their recognition.  If public libraries were a new idea, the AG would oppose their creation. 

* PPS.  The AG is trying to certify its suit as a class action.  If it succeeds, then instead of the three individual author-plaintiffs named in the suit at present, the plaintiff class would include all authors with copyrighted books in the University of Michigan Library, one of the libraries targeted for a full scan by Google Library.  Lawrence Solum and Julie Hilden have taken the lead in arguing that not all authors in that class support the AG's lawsuit.  I'm one and I've said in public (blog for September 30) that I'd gladly join a group of intervenors in opposing class certification.  I'd only change my mind if Google said in public that it preferred to face a class action suit, for example in order to avoid facing a new plaintiff and new lawyer every week for the next century.

To find out whether one of your books is in the University of Michigan library, use Mirlyn, Michigan's online catalog. 
http://mirlyn.lib.umich.edu/F/?func=file&file_name=find-b


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