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Google & Books: An Exchange

Google & Books: An Exchange
By Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al.

In response to Google & the Future of Books (February 12, 2009)

To the Editors:

My colleague and friend Robert Darnton is a marvelous historian and an elegant writer. His utopian vision of a digital infrastructure for a new Republic of Letters [NYR, February 12] makes the spirit soar. But his idea that congressional committees beholden to Hollywood might have implemented that vision is a utopian fantasy, while his description of what will happen as a result of Google's scanning of copyrighted works is a dystopian fantasy.

Google & the Future of Books

2007 Perfect 10 v. Google

Thesis: The Appellate Court made the correct decision by ruling in favor of Google; their use of thumbnails is not any form of copyright infringement due to Fair Use.

Perfect 10 v. Google

Perfect 10 v. Google, Inc. Order by United States District Court of California. February 2006.

In August 2005, Perfect 10 sued Google and Amazon for displaying thumb nail images. Perfect 10, an adult photography company, makes money by selling rights to copyrighted material. Perfect 10 sought an injunction and compensation from Google on the grounds that Google was illegally displaying thumbnail images of copyrighted Perfect 10 photos and linking to third party sites that further illegally host copyrighted materials. Google asserts that it does not infringe directly because it does not create the image that the image search pulls up and displays.

The court issued a preliminary injunction ruling that the thumbnail images from a Google image search did constitute copyright infringement, but the links provided to the full images did not. Google admitted that it created and stored the thumbnail images on its own servers. Thus, as to the thumbnails, Google distributed infringing copies of Perfect 10’s images. The links to the full size photographs do not involve any creation or dissemination even though there is a local browser caching. This local browser caching constitutes fair use. The court found that the use of the thumbnails was not fair use since Google made money from their creation and the thumbnails were not transformative because P10 also licenses thumbnail images. Thus, users could circumvent P10’s licenses by downloading the free thumbnails. The Court did note that Google does “provide great value to the public” as a search engine, stating that “search engines have become essential sources of vital information for individuals, government, non-profits and businesses….” Ultimately, Google’s thumbnail images did economically harm the value of the P10 images. Thus, the Court enjoined Google from further dissemination of the thumbnail images. In the case of AFP, Google must clearly not host and serve the image. However, the act of organizing the web and making news more readily available to users, perhaps even with leads and headlines seems reasonable.

Belgian Court Order in Copiepresse Litigation in Belgian

Belgian Court Order in Copiepresse Litigation in Belgium. 8 September, 2006.

In September 2006, a Belgian Court ordered in response to a suit for copyright infringement brought by Belgium copyright firm Copiepresse that Google had no right to publish online properties represented by Copiepresse. Copiepresse based its suit on the Belgium copyright laws of 1994 and 2005 and the database law of 1998. Google did not appear at the hearing. Further proceedings were scheduled for a later date.

Google News, according to the Belgiam Court, receives search terms from users and returns automated results that ignore whether or not the news item returned is protected by copyright. As a result, the Belgium Court treated Google News as providing news content, not acting merely as a search engine. The Court held that Google News’s use of the copyrighted materials is illegal under the copyright law and database law. Moreover, Google’s caching is reprehensible and literally causing news agencies to “lose control of their web sites and their contents.” In caching websites, according to the Court, Google leverages its massive infrastructure to essentially create a local copy of the Internet. Consequently, if a newspaper publisher pulls an article off the Internet or charges for access to article archives, Google News users might still be able to see the article free of charge through a cached link. The caching process evades the newspaper publisher’s right to control its copyrighted materials.

Ultimately the Court ruled that Google News caused great financial loss to Copiepresse and would cause great harm to news services across Europe. The Court ordered Google to withdraw the cached articles, not to reference any of the five entities Copiepresse represented at all, to post the Court Order on Google Belgium and Google Belgium News, and that if Google did not comply with the Court Order to incur damages of $1 million euros a day.

While this Order addresses the effect of Google News under Belgium law, the case does not address United States copyright law raised in the AFP litigation. Fundamentally, though, this decision and lawsuit raises the question of whether Google News properly should be viewed as a search engine that organizes news or a source of news and whether Google News may be legitimately lawful under the law of one country but not under the law of another country.

**Update: Google appears headed to a settlement with Copiepresse. Neither side has provided the financial details of the agreement. On November 28, the Copiepresse secretary general stated, "The Internet is not the Wild West…We want to be part of Google, but not without control over our content.'' For its part, Google commented that without Copiepresse content, their Belgian news coverage was lacking and insufficient.

Who controls the Internet? : illusions of a borderless world / Jack Goldsmith and Tim Wu.

Goldsmith, Jack L. . Who controls the Internet? : illusions of a borderless world / Jack Goldsmith and Tim Wu. [0195152662 (cloth) ] New York : Oxford University Press, 2006.
Call#: Van Pelt Library HM851 .G65 2006

Despite the predictions that the Internet would be tool of consensus for the world’s countries, applicable law continue to vary from nation to nation, luckily without impeding the growth of the Internet. Internet traffic, specifically ecommerce and media continue to thrive despite the application of local laws (148). Content providers have adapted to the wants and needs of local users across a variety of cultures and continents (149). There is no concept of universal free speech on the internet – what one country may consider as blasphemy might be the most treasured item of another country (150).

More relevantly, Goldsmith and Wu discuss how a court ruling in one country can be enforced in and intersect with the laws of another country. Using the example of Gutnick v. Dow Jones, in which business man Joseph Gutnick sued Baron’s online magazine, a subsidiary of Dow Jones, for defamation in an Australian court, the authors demonstrate that local law can coexist with the international scope of the Internet. While Gutnick won its defamation lawsuit against Dow Jones in Australia, it did not stop Dow Jones from continuing to have an Internet presence. The decision is not unlike any other decision that impacts a “multinational” business (157). Large corporations that have financial interests across the world like Dow Jones, Google and Yahoo! must be ready to defend their online content and business against the laws of any jurisdiction.

The Internet is not free of regulation just because it does not have the physical tentacles that other aspects of multinational companies do. For example, by operating Google.be and Google.fr, Google has a financial interest and presence in Belgium and France. They must be prepared to either pull their content out of those countries or comply with the laws of these jurisdictions, even if it undermines principles of American law. It is simply the cost of doing business. Smaller companies who have an Internet presence that may reach these same countries but who have no financial assets there will be in a different situation. They will need only to comply with the law of the country where their assets and physical presence can be found. Thus, the copyright law that applies on the Internet is not likely to be uniform but is more likely to reflect the public policies and interests of the local jurisdiction deciding the copyright question.

Newspaper, Magazine and Book Publishers Organizations to Address Search Engine Practices

Press Release of World Association of Newspapers. 31 January, 2006. (http://www.wan-press.org/print.php3?id_article=9055) (last accessed 27 November 2006).

In this press release, the Paris based World Association of Newspapers (WAM), representing a membership of eighteen thousand newspapers worldwide, including AFP, seeks to address the issues facing newspapers resulting from new technologies. In particular, in the WAM press release, WAM discusses the ‘Napsterisation' of newspaper content. More explicitly, the group expresses a desire to counteract "the exploitation" by Google News and other search providers of copyrighted news articles. While Google, Yahoo and other search engines hide behind a guise of social benevolence, WAN asserts that these search engines do not represent "Robin Hoods," but rather highly profit oriented organizations that are seeking to misuse the hard work and copyrighted content of newspapers. Ultimately, WAN seeks to craft a relationship between newspaper publishers and search engines that would prove profitable and legal for both parties involved. WAM appears to understand that newspapers must adopt to technology, but at the same time WAM seeks to have that adaptation involve compensation by the search engines to the newspapers.

As a reflection of WAM's ultimate objective, Google and the Associated Press agreed to a deal in August of 2006 that would compensate AP when Google News used its assets. Google justified the deal with AP in that the AP content licensed Google assets would complement Google News. Google News would remain a news aggregator that linked to news sites, which Google adamantly considers a fair use.

Similarly, in November of 2006 Yahoo! struck a deal with over 150 United States newspapers. The agreement announces that Yahoo's technological leadership, specifically search, advertising and infrastructure, will be partnered with the leading newspaper content in the United States. The partnership plan will allow Yahoo! users access to personalized local news, such as classifieds.

As evidenced by these deals, the presence of Google News and Yahoo! should ultimately make newspapers more profitable, not less. Users should click through links on Google News and on Yahoo! more frequently than before, thus, raising the page views, revenue and attractiveness of newspapers. Although the recording industry may have been technically correct on the copyright violations Napster committed, ultimately by not adopting to technology changes, the recording industry has been eroded and not been the driver of change. News services and newspapers must consider how to adapt to changes brought on by technology, not merely fight changes technology brings.

Conversation with Eric Schmidt hosted by Danny Sullivan

Schmidt, Eric. “Conversation with Eric Schmidt Hosted by Danny Sullivan,” interview by Danny Sullivan (9 August 2006) (http://www.google.com/press/podium/ses2006.html) (last accessed 26 November 2006).

In this interview of Google CEO, Eric Schmidt, by Danny Sullivan at the Search Engine Strategies Conference, Schmidt discusses issues facing Google. He addresses everything from click fraud to protecting user private data. Ultimately, Schmidt underscores Google commitment to provide to Internet users the most relevant information, whether it is news, ad-content or search results. He does confess to a new emphasis on profitability.

Most relevantly, Schmidt addresses the pending lawsuit with AFP. Schmidt asserts that Google understands and wants to be sensitive to various conceptions of rights and copyrights. Schmidt also admits that there is an underlying ambiguity associated with fair use but appears to remain firmly committed to Google’s definition of fair use. Schmidt asserts that Google’s use of parts or snippets of copyrighted materials, like books and news, is not only fair use, but a vital research and knowledge tool. In the interview, Sullivan, expressly asks Schmidt about the AFP lawsuit, and whether the deal between Google and the Associated Press was made to “solve a legal issue.” Interestingly, Schmidt answers that for Google, litigation is just another way of making a business deal. In other words, the AFP lawsuit was not unexpected, but rather something Google understood might occur given its new use of technology. The deal between Google and AP addresses these same issues in a different way – a way that attempts to foreclose litigation and to reach an amicable resolution of essentially the same issue.

Despite its altruistic mission of making relevant knowledge available worldwide, Google is ultimately a profit making corporation. Schmidt’s comments reveal that Google’s rise from search engine to a dominant corporation rests in its aggressive and liberal interpretation of fair use. Thus, the dispute with AFP could be settled if Google could reach a satisfactory monetary agreement with AFP as it did with the AP. No matter what social cause the EFF or other bloggers ring regarding the global importance of Google and free speech and the public’s right to knowledge, Google is just another company trying to impress its shareholders with its profitability.

Association of American Publishers

Platt, Judith. Google Library Project Raises Serious Questions for Publishers and Authors. Association of American Publishers. 15 November 2006 .
Schroeder, Pat. Publishers Sue Google over Plans to Digitize Books. Association of American Publishers. 17 November 2006 .

On August 12, 2005, the Association of American Publishers (AAP) posted a press release on their official website expressing their frustrations with the Google Print Library Project. The release states that the AAP supports the aims behind Google’s program but objects to Google’s use of copyrighted material without explicit permission. In addition, the AAP objects to Google’s “opt-out” policy. Through this policy Google will copy and digitize copyrighted works unless copyright owners specifically exclude their works from the program. Mrs. Schroeder, President and CEO of the AAP, states that Google’s opt-put policy, “…shifts the responsibility for preventing infringement to the copyright owner rather than the user, turning every principle of copyright law on its ear.” This August press release sets the stage for the lawsuit filed by the AAP against Google on October 19, 2005.

The day this lawsuit was filed, the AAP posted a press release on their official website. The release states that the lawsuit resulted from a breakdown of negotiations between the AAP and Google. According to the AAP, an ISBN based system can be easily utilized to aid in identifying copyright owners and obtaining proper permission to copy and digitize works. However, Google’s rejection of this system forced the AAP to file suit. In this release as well as the August one, the AAP makes a point to state their understanding of the benefits of Google’s program; the release declares, “…authors and publishers know how useful Google’s search engine can be and think the Print Library could be an excellent resource.” Nevertheless, the AAP strongly maintains that these benefits do not trump the fact that Google is engaging in copyright infringement.

Law and Borders -- the Rise of Law in Cyberspace

David R. Johnson and David Post. "Law and Borders-- the Rise of Law in Cyberspace." Stanford Law Review 48 (May 1996): 1367-1402.

David Johnson and David Post discuss the early difficulties (1996) in conceptualizing law in cyberspace. Borders in cyberspace are defined legally in terms of “screens and passwords that separate the tangible from the virtual world,” rather than physical and territorial boundaries that have traditionally defined legal doctrines. The authors hypothesize that without accustomed territorial boundaries, cyber law will develop independent of the usual local government regulation and authority and require a new type of thinking. To support this thesis, Johnson and Post reference the terms of service agreements offered by contemporary online service providers America Online and CompuServe as a type of law that would be enforceable, regardless of whether the agreeing user logged in from the United States, France, or Belgium.

Specifically, Johnson and Post discuss the emergence of and difficulty in constructing Copyright Law in cyberspace. Quoting law professor and copyright expert Jane Ginsburg, Johnson and Post explain the troubling task of deciphering copyright laws given an infinite number of countries. Ginsberg asks, “Without physical territoriality can legal territoriality persist?” (1834). In this context, Johnson and Post describe an explanation of the purpose of copyright law as the creation of a demand for works that can be sold and serve the public’s desire for knowledge (1384). The internet has created a mechanism to publish and view news easier and quicker than ever before in history. While regulating the dissemination of these works is complex, the crucial part of this process is to foster “a relationship” (1385). Most notably, Johnson and Post, assert the “ubiquity” of “copying” in cyberspace creating new notions of Intellectual Property. Every time you access a file online, your computer creates a local copy and this has important consequences for the concept of the “first sale’ doctrine” and fair use in copyright law (1386). Ultimately, these authors contend that new laws and conceptions of law must be developed to tackle the issues that will arise in cyberspace. Most relevant of the notions that Johnson and Post assert is how the use of caching of Google News constitutes a fair use, because users do it automatically.

The notion, however, that copyright laws as they now stand can not address the Internet does not stand up to scrutiny. Rather, it is the copyright owners that need to better assess the benefits of new technologies and the technology companies that need to better create new products while respecting existing copyright law. The law appears more than capable of addressing the issues even if the results might be different in different countries. There exist ways for technology providers to alter their systems to meet the differing legal requirements of differing countries.

How the AFP/Google Lawsuit Could Destroy the Blogosphere

Hoffman, Bob. “How the AFP/Google Lawsuit Could Destroy the Blogosphere.” Search Engine Guide. 25 March 2005. (http://www.searchengineguide.com/cgi-bin/mt/mt-view.cgi/33/entry/3875/print_version). (last accessed 27 November 2006).

The Google-AFP decision could have a resounding impact across the internet. If headlines and leads are ruled copyrightable material, the ability to write, specifically blog, about the news could be specifically limited. “Bloggers traditionally quote articles and link to them in much the same way Google’s News site does. This means they can no longer do that with AFP news items without threat of a lawsuit,” Bob Hoffman, a “scared” independent journalist, explained. This explains why Matt Drudge, creator of drudereport.com, closely monitors the Copiepresse and Google cases on his site. If the AFP lawsuit is upheld, Drudge’s site, a collection of breaking news stories, could be liable to a continuous barrage of lawsuits as well.

If a ruling in favor of AFP truly signifies the end of the “news” Blogosphere, it will have severe consequences for the state of American Media. Blogs keep news media honest, offering criticism, secondary analysis and fact checking. The only sources of news will be the “big players” who will “completely control the news we see, read, and hear.” Corporations will own the news and its reproduction, and even subtle criticism will not be allowed.

While such a doomsday scenario is unlikely, Hoffman provides a convincing argument as to why commentary and links to the news needs to be considered fair use. The news is vital to our public discourse, and fair and neutral news is crucial to the development of the country and its citizens. It may be, however, that by adding criticism or comment the Drudge Report creates a new product and presents, under at least United States law, a differing analysis of fair use. A decision fully upholding AFP’s claims against Google will not necessarily undermine the Blogosphere. Yet, the impact of a decision on the Blogosphere does highlight the need to consider the public interest in any copyright analysis under United States copyright law. But particularly with the element of public interest, the fair use analysis could differ significantly among different jurisdictions.

Google Print Library Project

In December of 2004 Google announced the addition of the Google Print for Libraries program to its existing Google Print program, Google Print for Publishers. Both programs, now referred to as the Google Books Library Project and the Google Books Partners Program, respectively, allow users to search the full texts of books in order to locate those of interest. As part of the Print Library Program, Google plans upon scanning and digitizing works held by major libraries in order to add to the database of searchable text in the Book Search program. Google's actions with regard to the Library Project have been met with staunch criticism and accusations of copyright infringement. However, Google believes that the policies and practices related to this program are protected by the fair use doctrine and therefore, are consistent with copyright law. Based upon Google's statement of practices and the precedents set by prior court decisions, it seems likely that the courts would rule Google's scanning and digitization of library works fair use.

Letter to Google from the AAUP

Givler, Peter. Letter to Alexander Macgillivray. 20 May 2005. GoogleWatch. 19 Nov. 2006 <http://www.google-watch.org/givler.html>.

This letter illustrates the fact that while there are many similarities between the business practices of Arriba Soft and those of Google, the differences that do exist, may present problems in a finding of fair use for Google. Both cases involve accusations of copyright infringement based upon the wholesale copying of protected material to create search engine databases. However, the material Arriba Soft copied was already digitized and available online, whereas, in general, this is not the case for the material Google is copying. This distinction is viewed as critical by many as posting information on the internet is typically viewed as an implied license.

Additionally, the full-resolution copies Arriba Soft made in order to create the thumbnails it used for indexing were deleted after the thumbnails were produced. In contrast, Google both keeps a copy and gives a copy to the library the work was copied from. Even if Google were able to succeed in a fair-use argument based upon the decision in the Kelly case in which full copying could be considered fair use if necessary for the intended use, there would still be the issue of justifying the provision of a digital copy to the participating library.

Given these differences, the article poses the question, “how does Kelly v. Arriba Soft support your claim?” Moreover, the article asks why other cases in which the courts decided against a claim of fair use, such as Buena Vista v. Video Pipeline, do not apply to Google’s argument as well. This second question is an intriguing one; however, it seems as if the Kelly case more directly parallels Google’s fair use assertion. One large difference is that unlike Video Pipeline, Google does not profit directly from its use of copyrighted material.

NYPL, LIVE from the NYPL, Event Description

Adler, Allan, et al. “The Battle over Books: Authors and Publishers Take on the Google Print Library Project.” The New York Public Library, New York. 17 Nov. 2005.

On November 17, 2005 WIRED magazine and the NYPL sponsored a discussion on the Google Print Library Project. The panelists were Nick Taylor, representing the Authors Guild, David Drummond, representing Google, Lawrence Lessig, a Stanford Law professor specializing in copyright law, and Allan Adler, representing the Association for American Publishers (AAP). The discussion was intended to flesh out the issues raised by Google’s project and to gain insight into the future of the digital indexing of books. However, rather than elucidate the copyright issues inherent in this debate, this discussion illustrated that economic incentives are at the heart of the conflict between Google and its opponents.

The first to speak, Taylor, immediately alludes that the Authors Guild’s objection was routed in its lack of economic benefit from Google’s program. He claims that Google’s actions represent, “a rogue version of eminent domain, only without the compensation that government routinely gives.” Adler’s statements reveal a similar point-of-view in which the real threat Google poses is an economic one. Adler declares that since Google is a for-profit company its use of copyrighted material is essentially robbing copyright owners of the ability to exploit the market for their works.

Through this discussion it becomes apparent that the Authors Guild and the AAP believe that Google has created a new market for their works. In addition, they believe that Google’s program will have a negative effect on their ability to access this new market. Thus, a finding of fair use seems inappropriate to the Authors Guild and the AAP as in their view the fourth factor, effect on the market, should weigh against Google. However, in the course of this discussion, both the Authors Guild and the AAP failed to show how Google Book Search impedes authors and publishers from licensing their work to search engines or anyone else.

Corinna Baksik - Fair Use or Exploitation? The Google Book Search Controversy - portal: Libraries and the Academy 6:4

Baksik, Corinna. “Fair Use or Exploitation? The Google Book Search Controvery.” portal: Libraries of the Academy 6.4 (2006): 399-415.

This article attempts to assess whether or not the reproduction of copyrighted works under the Google Library Project can be classified as fair use. This assessment is made through an examination of potential court rulings with regard to the four factors used to determine fair use. The article points out that a finding of fair use could be likely with regard to the first factor, purpose and character of the use. It states that Google’s use could be considered transformative as its function of indexing works, differs greatly from the function of the original works and thus “does not supplant the original.”

The article also identifies potential problems that could arise in attempting to apply the second and third factors, nature of the work and amount used, to Google’s use. According to this article, the issue with the second factor is that Google makes no distinction between factual and creative works; however, this distinction carries great importance in a fair use determination. The third factor provides problems as there are two possible ways in which the amount used could be judged. Although Google displays only a few sentences surrounded the item searched, an entire copy of the work is made in order to digitize the original. The article alludes that this copying may not be considered fair.

With regard to the fourth factor, effect on the market, the article states that Google’s library project could potentially have a negative effect on the market as it could prevent copyright holders from being able to license their works to other search engines. However, the article notes that this is unlikely as many copyright holders do not charge a license fee to participate in Google’s publisher program. Moreover the article points out that since many of the works in the library project are orphan works, there cannot be a negative effect on the market.

AG : The Authors Guild : News : Authors Guild Sues Google, Citing

Aiken, Paul. Authors Guild Sues Google, Citing “Massive Copyright Infringement.” The Authors Guild. 17 November 2006 <http://authorsguild.org/news/ sues_google_citing.htm>.

On September 20, 2005, the Authors Guild and several individual plaintiffs filed a class action lawsuit against Google. Following the filing of this lawsuit a press release was posted on the Authors Guild website. The press release states that the lawsuit is in response to the Google Library Program. According to this press release, Google’s scanning and digitization of copyrighted materials without the permission of copyright holders is tantamount to “massive copyright infringement.” The Authors Guild’s conviction that Google is guilty of copyright infringement has its basis in the opinion of Nick Taylor, president of the Authors Guild, who states, “It’s not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.” As a result of Google’s infringing actions the Authors Guild requests an injunction and for damages to be awarded.

Official Google Blog: Google Print and the Authors Guild

Wojcicki, Susan, “Google Print and the Authors Guild.” Online Posting. 20 September 2005. Google Blog. 15 November 2006 <http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html>.

Google Vice President of Product Management, Susan Wojcicki, responded to the Authors Guild press release by posting on Google’s official blog later that day. In this post Wojcicki highlights the reasons why Google believes it is not committing copyright infringement. Among these reasons is the fact that copyright holders can have their works excluded from the program at any time. Additionally, Wojcicki points out that Google does not provide users full access to a copyrighted text; she states, “At most we show only a brief snippet of text where their search term appears, along with basic bibliographic information and several links to online booksellers and libraries.” Throughout this post Google asserts that its Library Project is in full accordance with both the fair use doctrine and the principles of copyright law.

Official Google Blog: The point of Google Print

Mathes, Adam, “The Point of Google Print.” Online Posting. 19 October 2005. Google Blog. 15 November 2006 <http://googleblog.blogspot.com/2005/10/point-of-google-print.html>.

This post to Google’s official blog is intended to provide readers with insight into the purpose behind Google Print in light of the lawsuit filed by the AAP on October 19, 2005. The explanation of the rationale behind Google’s project shows that Google believes its use of copyrighted material is non-infringing. In this blog Google states that it fully respects copyright law and the creativity it protects. However, Google adds that Copyright law, “is all about which uses require permission and which don’t.” Throughout this post, Google affirms that its scanning of copyrighted material is fair use and thus consistent with the Copyright Act.

Additionally, Google uses this post to explain the benefits their Library Project bestows upon its users. The project is referred to as, “one giant electronic card catalog that makes all the world’s books discoverable with just a few keystrokes by anyone, anywhere, anytime.” However, a workable “electronic card catalog” could not exist were Google to make anything less than full copies of as much text as possible. Google illustrates this concept, showing that the copying and indexing required for the Print Library Project parallels that necessary to create a useful search engine. Google insists that the practices it follows in its Library Project are the same as those it utilizes in the creation of its search engine database for websites. If Google were not allowed to copy and index websites without explicit permission, its search engine could not exist. Thus, Google maintains that complete copying is required to fulfill the purpose of their project. This fact is likely to aid Google in a finding of fair use, as the ruling in Kelly v. Arriba Soft states that entire copies may be fair use if the amount copied is the minimum amount necessary.

Sanford G. Thatcher - Fair Use in Theory and Practice: Reflections on Its History and the Google Case - Journal of Scholarly Publishing 37:3

Thatcher, Stanford, G. “Fair Use in Theory and Practice: Reflections on Its History and the Google Case.” Journal of Scholarly Publishing. 37.3 (2006): 215-229.

This article provides many arguments as to why Google’s digitization of copyrighted works should not be considered fair use. Most importantly, unlike many other criticisms of the Google Library Project, this article clearly points out the ways in which Google’s program could directly hurt the market for these copyrighted works. According to this article, the danger is not necessarily in the inability of copyright holders to license their material, an argument which has been deemed negligible due to the presence of Google’s Publisher Program, but rather the threat posed by the presence of the digital copies.

Through Google’s arrangement with the libraries participating in the project, two digital copies of each copyrighted work are formed, one used by Google for indexing and the other by the library as the library sees fit. This article claims that these copies may in fact serve to supplant the market. As such, these copies could have a negative effect of the market value of the copyrighted works. Additionally, since no agreement exists between Google and the copyright holder, Google has no real responsibility for maintaining the security of the copy.

Despite the arguments made against a finding of fair use, this article recognizes that ultimately the court will make a decision and then adapt its findings to the language of the four factors. Since, as the article states, “judicial ‘decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns’” it is unlikely that the above arguments against a finding of fair use will, of themselves, contribute much to the court’s decision.

SSRN-Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying by Paul Ganley

Ganley, Paul. “Google Book Search: Fair Use, Fair Dealing, and the Case for Intermediary Copying.” (Jan 2006). SSRN. 17 Nov. 2006. <http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=875384>.

This article is interesting in its application of the court’s rulings in UMG Recordings v. MP3.com to Google’s argument of fair use. The article recognizes that with regard to most of the four factors, Google’s use of copyrighted materials in its Print Library Program more closely parallels Arriba Soft’s use than that of MP3.com. However, the article cites the court’s opinion in Harper & Row, Publishers, Inc. v. Nation Enterprises, noting that the fourth factor, effect on the market, is often the most important in a finding of fair use. It is with regard to this last factor which is, “undoubtedly the single most important element of fair use,” that the decision in the MP3.com case becomes increasingly relevant.

Google argues that it will increase the market for books as it will enable users of the Print Library Program to discover and obtain books they would not know of otherwise. This claim gains support from the increase in sales noted by Amazon’s “Search Inside” feature which allows users to search and view the context of books available for purchase through Amazon’s website. According to this article, “sales of searchable titles have increased by 9% relative to non-searchable titles.” The article also points out, however, that the positive impact of Google’s program on the current market for books does not necessarily weigh in its favor in a finding of fair use; the article states, “as the MP3.com court made clear, the positive impact on prior markets does not justify the defendant usurping a potential market.” Unlike the MP3.com case, the potential market usurped by the Print Library Project is not well defined. Unless Google’s opponents can prove the presence of a potential market, it appears as if the market impact of Google’s use will primarily be positive. As such, it seems likely that the fourth factor will weigh in Google’s favor in a finding of fair use.

SSRN-Standing Copyright Law on Its Head? The Googlization of Everything and the Many Faces of Property by Oren Bracha

Bracha, Oren. “Standing Copyright Law on Its Head.” (Sept. 2006). SSRN. 17 Nov. 2006. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931426>.

This article delves into the legal issue of Google’s “opt-out” policy for its Print Library Program. The opt-out policy for Google’s program states that Google will digitize all works unless the copyright holder informs Google to exclude its works. This policy is based upon the legal theory of implied consent. The implied consent construct was formed on the basis that the ability to fully utilize the Internet would be greatly stunted were permission required to access and use each website. The author of this article illustrates this concept stating, “A world in which each electronic access to a computer connected to the Internet required pre-authorization at the peril of legal liability would stun much of the power and promise of this medium.” As a result, it is implied that one who makes his works publicly available on the Internet wants his works to be seen. Accordingly, it is presumed that the creator of a website intends to grant access to all viewers. It is this theory of implied consent that Google, and all other search engines, utilize in order to create the databases necessary for search and retrieval.

Google claims that it offers copyright holders whose works would be included in its Book Search Program the opportunity to “opt-out” in order to be consistent with its policy for website searches. Moreover, Google, or any digital-library project for that matter, would greatly lose out were it to rely upon an “opt-in” policy. The article exemplifies this stating, “substantial gaps exist in information which is vital for avoiding the infringement risk.” These gaps include the unknown status of works, unknown owners of works, and uncertainty regarding the intentions of the owners. Thus, it could be argued that due to these “substantial gaps” the creation of a workable index of books would be impossible; as such Google Book Search would be effectually useless.

Association of American Publishers

Please refer to "Association of American Publishers: Google Library Project Raises Serious Questions."