September 21, 2005
Google Print Lawsuit
The inevitable Google Print Lawsuit has been filed, by the Author's Guild.
The complaint doesn't appear to argue much beyond a simple claim that
Google's actions are copyright infringement, the core is:
39. Google has made and reproduced for its own
commercial use a copy of some of the literary works contained in the
University of Michigan library, which contains the Works that are the
subject of this action, and intends to copy most of the literary works
in the collection of that library.
40. Google's conduct is in violation of the
copyrights held by the Named Plaintiffs and other members of the Class.
As I wrote earlier in
Google Print: Copyright vs. Innovation vs. commercial value, I
think there are some inherent conflicts here:
That is, the technology company can't be right every time, almost by
definition. Because copyright as a limited monopoly fundamentally
restricts innovation in some ways. That's the trade-off.
I'm not in the business of writing legal briefs, and I don't have any
particular passion for or against Google Print, so I'm not going to go
deeply into the fair-use arguments (no point for me in that ...).
Anyway, I suspect that it's just going to come down to a whether the
relevant judges believe the project is useful or not, which is leading to
a perception/PR battle.
By Seth Finkelstein |
posted in copyblight
on September 21, 2005 02:31 PM
The fair-use argument is Google's only lifeline. First, Google has to grab all that out-of-print copyrighted material. They want to search the full text in order to show snippets that include the keywords, which means that they have to copy the whole thing.
That's the first legal hurdle. The copyright law is all about making copies. If Google could show the snippets without the prior step of copying the entire book, then they might have a reasonable fair-use argument, assuming that they weren't doing it for commercial reasons.
Google is not only copying the entire book, but they are claiming their own copyright on the digital copy, and the entire exercise at Google is for commercial purposes. Can you spell a-r-r-o-g-a-n-c-e ???
The second legal hurdle is that there is an entire section of the Copyright Act, Section 108, about the extent to which libraries can make copies. The question is whether this entire section is a *cap* on library copying, or is it a *safe haven* for libraries? This section does not override "fair use," but you can bet that many judges will look at it very carefully. There is no case law on Section 108. It a judge decides that Section 108 applies to the University of Michigan library, then Google cannot grab books from any U.S. library, period.
I wrote to The Authors Guild almost two months ago, explaining how I saw the issues. A copy of that letter is at http://www.google-watch.org/foia/aglet1.html
I think the Authors Guild suit is well-constructed. Yes, it's brief and vague, but it is very open-ended and all that interesting legal stuff will certainly come out in the wash. The factual statements in it are perfectly adequate and accurate. There is no question that the Guild has very strong legal standing. If the suit achieves class-action status (which should be a slam-dunk), then all sorts of additional input might be relevant.
I believe the case against Google is in capable hands. I was very interested in Section 108 over the past three months, in my unsuccessful attempts to get U-M to reconsider. But now I feel that it would have been inadvisable to go after U-M based on 108. There's always time for that as a last resort, should it be needed.
Google is a weed growing in the copyright garden. A successful action against U-M would trim back part of that weed. But quite intelligently, Authors Guild is setting themselves up to pull out the entire weed, roots and all.
It's much more interesting this way. I'm also delighted that an authors group, rather than a publishers group, took the first step. That way all those "information wants to be free" cyber lawyers at EFF and Harvard's Berkman Center cannot easily blog about all those "greedy publishers." Instead they'll have to blog about 8,000 "greedy authors," which isn't quite as effective from a public relations standpoint. Legally, of course, it makes no difference because it's all about rights holders, which includes many authors as well as many publishers.
Google isn't my favourite company, and they may be arrogant. Likewise I consider that much of the publishing industry, and many authors of original works too, are arrogant in believing they can basically extort the public out of its rights and essentially say that "if you don't give us our perpetual copyright, and some anti-circunvention laws, and you fail to stop any new or existing technology that will not make us more money immediately we will stop creating". To those people I say STOP CREATING! I shouldn't have to give up my freedom, fundamental as few others, to do arbitrary mathematics, to understand and modify and paraphrase and copy things I find in my environment, so that authors and publishers can feel more comfortable about releasing their works. I'm willing to give some things away for some gains that I consider reasonable, but this is too much by far.
I am all for Google Print ! I am sure many people in the world feel this kind of service is necessary in this modern world !
I have no sympathy either for the authors or the mostly arrogant publishers !