Why Google Is Right
Get interested in GooglePrint. It's one of the best plans that Google has, and it needs to happen. No one is going to bring more books to the attention of the world — and help more authors — than Google. Here are all the reasons that we should applaud Google for going forward with GooglePrint, and all the reasons why Google will prevail in the (sadly) recently-filed lawsuit.
1. Google had a great idea. Let's make the books in the libraries of Harvard, Stanford, Oxford, and Michigan searchable. (Note — the idea wasn't “let's give the books away.” Not at all. The point is to make them searchable, not takeable.) There are all these wonderful books that these great libraries want to interest people in, but they're up flights of stairs, on dusty shelves, and in darkness. Let's make them searchable so that people know they're out there.
2. The libraries have a great public mission: to bring knowledge to people. (I love libraries. I especially love reading rooms.) But the libraries don't have the money or the resources to make their texts searchable. Google, as it happens, does. Google is great at manipulating enormous amounts of information in a user-friendly way. If someone else were doing this, that would be great. Sometimes libraries do make entire works available online — the New York Public Library made hundreds of thousands of public domain images available for public searching. But the great libraries of Harvard and Stanford and Michigan and Oxford looked over Google's plan to make snippets available and thought it fit their public mission.
3. Hear that word, “snippets”? That's all that Google proposes to do. In response to search queries, people will be able to browse the full text of public domain materials (material no longer protected by copyright). But when it comes to books that ARE still covered by copyright, users will only be able to see a few sentences surrounding the search term. That's a key fact that people seem to be missing. You won't get the whole book. In fact, you won't even get a whole page (unless the holder of copyright has affirmatively allowed Google to show entire pages). And you'll only get three results for any given book's use of a particular term.
4. Sure, I guess, people could carefully search and search for hours, and attempt to build up an entire book, but that's both painful and silly. And unavoidable. Google has created a system that has checks in place that these great libraries thought were fine. I think they're fine too. The aim, goal, purpose, thrust, point of the program is to reveal resources that might have something to do with the search term you're interested in. (Try GoogleScholar — it's pretty neat.) Then you'll go and get the whole book from your local library if it looks really relevant. And your library will be delighted to help you!
5. Everyone does research online. What author wouldn't want to be part of the pool that we look to for research information? Who wouldn't want to be noticed?
Here's what a screenshot looks like from the libraries project:
See? That's all you get.
6. When Google first heard last month that some publishers were unhappy about GooglePrint, they stopped scanning books and said they wouldn't scan any more until November. And Google said that if a publisher told them that they didn't want particular books to be part of the library project, they'd honor these requests.
7. It's impossible for Google to say to all publishers (what a big world!) “tell us which books you WANT us to scan, and we'll do it.” (Imagine running a search engine on this basis.) So Google is doing the next best possible thing — giving people an easy way to opt out of the project.
8. Now, some authors are upset, and they have sued. They're saying they're not upset about the snippets. They're saying they're upset about the complete scanned copy that Google has made in order to make the snippets available. These complete scanned copies aren't public. Google has to make these copies in order to make the snippets happen.
9. All computers do is copy. Copyright law has this idea of strict liability — no matter what your intent is, if you make a copy without authorization, you're an infringer. So computers are natural-born automatic infringers. Copyright law and computers are always running into conflict — we really need to rewrite copyright law. But even without rewriting copyright law, what Google plans to do is lawful.
10. What makes Google not an infringer is the affirmative defense of fair use. Google says, in effect, “yes, a copy is an infringement. But it's justified.” There is no way that Google can make the Great Library of Alexandria open its doors to curious outsiders without (initially) making a private, unsold copy.
11. Under the Sec. 107 fair use factors, there's a well-known 2003 9th Circuit case called Kelly v. Arriba Soft that fits the Google facts extremely well. Arriba made thumbnail (small) versions of online pictures available in response to search requests. Like Google, Arriba had to make copies of the original material in order to do this. And the 9th Circuit found that Arriba's use was privileged as a fair use.
12. Like Arriba, Google is not trying to sell copies of these original books. Google, like Arriba, is providing a useful tool. Google, like Arriba, is copying entire books in order to make the library project happen, but it has to do that in order for its search engine to function. In fact, Arriba was making a tiny version of the whole work available — Google isn't doing that. It's only making a tiny portion of the whole work available. In the course of doing that, it has to make an intermediate copy — like many other transformative processes, this one starts with a chunky first step.
13. The authors who are suing are claiming that they'd like to license their works for online searching themselves — and they're free to do that. They can simply ask Google not to include them in Google's pool. Their claim is that that's too much of a burden. Phooey. Google's inclusion of their books in the searchable pool can only help these authors, not hurt them.
14. What Google plans to do with books is worth cheering for. Sure, they're ambitious. Sure, they're rich. But I don't think this project is aimed at supplanting purchases of books. Far from it – these dusty tomes will see the light of the digital age because of the Google scanners. People are buying more and more books these days because of Amazon, and I see no reason why that effect won't be amplified by having Google make searchable texts available.
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I know it's fashionable to be dubitante about Google these days, but I refuse to do it with respect to this program. I love books, I love libraries, and Google is serving the best interests of both with snippets framed by clear (lovely, really) interfaces. Go, Google.
Comments
12 Responses to “Why Google Is Right”
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Re: Point 7.
Well, a search engine could very easily be opt-in only. All a webmaster would have to do is put google tags in either robots.txt or in the meta information on each page. Of course, the search index would be incredibly tiny and not of much use. But it would be possible.
Susan >7. It's impossible for Google to say to all publishers (what a big world!) “tell us which books you WANT us to scan, and we'll do it.”
No, it
Publishers ARE clamoring to have their books included. The people suing here are a few authors. I have a feeling that not all authors would agree with them.
Can W3C come up with a standard tag for HTML pages that want to be searched? as a default? That would be great.
Susan
What's intermediate about Google's copying? This isn't like a reverse-engineering case where the copy is discarded. As I understand the Google proposal, the copy will be permanent.
And I doubt the copyright owners are arguing simply that it's “too much of a burden” for them to opt out. They are more likely arguing that, under copyright law, it's not their burden to bear.
Bruce –
In my mind, this can be analogized to the Sony Betamax case. Yes, a general purpose copying device has made a complete copy along the path towards doing something else that's clearly a fair use. In Sony, the fair use is time shifting. Here, the fair use is snipping. If we say “no complete copies ever,” then just about everything a search engine or computer does needs permission. Like the Netcom case, that's just too much liability for the system to bear. It won't (and shouldn't) work to impose such a mountain of liability.
Your point about burdens is a fair one. Opt out isn't the way copyright law has worked in the past. But, again, when it comes to computers and search engines, and the opt outs are so easy, it may be the way forward.
Susan
I don't think the Betamax analogy works, however, because this is a direct infringement case rather than a contributory infringement case. (The complaint refers only to Google “ma[king] and reproduc[ing] for its own commercial use a copy of some of the literary works contained in the University of Michigan library.”) If Google was making available a tool that allowed users to download and view snippets from some other, non-Google source, then that would be analogous. But this is more like the MP3.com case; Google is making complete copies of copyrighted works and placing them on its servers. And it's also different from copies made in the ordinary course of computer or network operations, such as Google's existing website. One can argue, in the context of the internet, that an implied license for search engine crawlers and temporary copies made by browsers exists, unless specifically disclaimed, merely by placing a non-password-protected page on the Internet. (Thus, I don't buy Larry Lessig's argument about Google today.) But I don't think you can infer a comparable implied license from the sale of a hard copy book to a library.
Bruce –
Had Sony sued the customers doing the time-shifting, Sony would have been a direct infringement case. Time shifting, like displaying snips, is a fair use — and neither time shifting nor snipping is possible unless you first make a complete copy of the work. I also think the Netcom analogy is fair. There, the court imported extra-copyright common sense in order to solve a difficult problem.
I'm not pushing the implied license point.
But in the Sony case, it was the Betamax user who was making an entire copy, for noncommercial purposes, for the purpose of time-shifting, which the court held to be a fair use. Here, Google is making complete copies for commercial purposes, so that its users can make the asserted fair uses of them. Betamax would have been a far different case, I think, if Sony had been running an advertising-supported service where it recorded and sent television programs to consumers who had missed the original broadcast. Since this is a direct infringement case and not a contributory infringement case, the consumers' fair use arguments do not immunize Google's actions. Again, I think it's like MP3.com, where the court held that even assuming MP3.com's customers owned their own copies of the CDs in question, MP3.com still infringed the copyrights by making the copies on its server to begin with.
You can analogize the Betamax user to Google. Here, Google is making a complete copy for the purpose of presenting snippets to users. The Google presentation of snippets (not the user's access of the snippets) is the fair use that is like the time shifting in Betamax. Google is “librarying” complete copies, but is not selling them or displaying them in competition with the book copyright holder. Google's complete copies are (probably) commercial, but that's not dispositive as to the fair use inquiry for this first step.
MP3 is quite different — there, the service was making complete copies available to the public.
I'll stop saying Netcom soon, but it seems to me like a very similar move. Sure, there's strict liability for infringement. But bringing it to bear in this context would be nonsensical.
Reply to point #4, which began:
This is no different from a library. Why are publishers filing a lawsuit against Google, and not filing a lawsuit against every single public library in the entire US as well? If someone wants to spend hours tediously searching for consecutive words in order to get a free book (using Google's proposed Print program), they could just as soon take a laptop to a library and copy from the book directly.
I believe that this is a good thing for book authors and publishers and that Google will prevail. However, the fact that it is difficult to contact the authors on this is no excuse for copying their intellectual property. The words in a book have a value other than commercial for its author. So seeing your work being copied with the permission of a third party (a library) is a strike below the belt. I think fundamentally, the issue here is that libraries categorically DO NOT have the legal right to authorize the copying of a book. This is clearly stated near the front of every book.
As history will have it though; a little piracy and a few lawsuits are always neccessary to fuel a new industry based on copyright. This is all just a teething process.
The Google presentation of snippets (not the user's access of the snippets) is the fair use that is like the time shifting in Betamax. Google is “librarying” complete copies, but is not selling them or displaying them in competition with the book copyright holder. Google's complete copies are (probably) commercial, but that's not dispositive as to the fair use inquiry for this first step. It's my site: world news