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 book copyright settlement

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current, and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is the actual settlement awaiting court approval. As a source, it is imperative for my argument because it delineates the fate of orphan works in relation to the Google cyber-library, as well as the structure and function of the Book Rights Registry. It is the single source describing how the Google Book Search project could be the private-sector solution to the problem, offering an alternative to the –so far insufficient – orphan works legislation.

The agreement will essentially provide the following:
-    Access to 20% of the content of copyrighted books. Before the agreement, access to copyrighted books was restricted to the snippet view (only some sentences around the search terms were provided). More content could be displayed (some pages before an after the search term) only after explicit agreement between Google and the rightsholder. Now, the default amount displayed is 20%. In case the rightsholder wishes Google to display less, display bibliographical information only, or to remove her book from the index altogether she can opt out of the Google Book Search project by contacting Google.
-    Opportunity to purchase the book online and store in a personal “electronic bookshelf.” That means that the purchased books will be available for online reading whenever the user logs in to her Google account. Copy/ Pasting will be limited to 4 pages, while printing will be limited to 20 pages of material, with a watermark that identifies the work as copyrighted.
-    Access to all the online material for sale through institutional subscriptions. In this way, U.S. Colleges and other organizations will be able to allow access to the digitized library to their faculty and students.
-    Free, full-text, online viewing from at least one computer in every US public library.
-    The creation of the Book Rights Registry whose function it will be to track down the rightsholders and distribute the payments earned though the 2 aforementioned pathways (Institutional access, private purchase). It will also distribute revenues earned from ads placed next to the displayed book. The Book Rights Registry will be a not-for-profit organization which will store and update rightsholder information. As well as actively searching the rightsholders for every work, the Registry will provide an incentive for rightsholders to surface and claim their works because it will distribute the revenues collected by Google.

The agreement resulted from a US lawsuit, so its effects are only valid for US users. It must also be approved by the court first (expected in May 2009).

This is a letter written by Google executives as a response to the Copyright Notice of Inquiry regarding orphan works.  It describes Google and the services it offers, most notably Google Print, which aims to make searching for books and their content as easy as searching for Web sites.  The letter also outlines how Google is directly impacted by the problems presented by orphan works, namely that they “show much more limited information on the assumption that that is what the copyright holder would prefer,” even though “that assumption is often wrong.”  Finally, the letter proposes a two-step solution to the orphan works problem:  (1) the creation of a simple, accurate and reliable searchable database and (2) changing the Copyright Act to preclude users of orphan works from infringement liability while ensuring that copyright holders do not lose their copyright due to failure to adhere to a formality. 

As the king of Internet search, Google, on a mission to digitize all knowledge, is an important source for my paper.  The company openly admits in the letter that it plans to exploit the Orphan Works Act to make material available online through its search engine that it cannot currently because it doesn’t know who to ask for permission to use the work, whether for a fee or for free.  The orphan works bill is essentially a goldmine for Google, giving the company access to millions of works that are currently not being used for fear of copyright infringement.  Although Google will use the orphan works for personal motives, i.e. commercial use, I think this is the type of use the writers of the bill had in mind and, ultimately, the type of use the writers of the Copyright Clause approve to “promote the progress.”  However, while I think Google Print could be quite beneficial in making orphan books and publications accessible, I think doing the same for orphaned photos and other visual art could be more difficult and perhaps harmful to artists because these works are often dissociated from their authors and might show up on Google searches without bylines or any sort of identification.  That said, to solve this issue, I think Google is best-equipped to create the very registries it so enthusiastically endorses in the letter.

In this article, Betsy Schiffman of Wired Magazine, sets out to find out why MP3 Blogs have yet to be targeted by the RIAA, subsequently she declares that these blogs could be a "win-win" situation for all parties involved--including Google.  An owner of a blog aggregator divulges that record companies contact them about promoting bands."  The owner goes on to say that he performs this service free of charge; Schiffman declares that MP3 blogs are not a moneymaking operation.  Many blogs run ads, but these only add up to 75 cents for each hour put into it.  These ads come from Google's AdSense program.  Google reportedly makes 1/3 ($1.45 billion) from AdSense in 2007 alone.

This article discredits the Guardian article's assertion that blog aggregators hurts  the music industry.  If labels are voluntarily seeking out these hubs in order to further their band's notoriety, than they can't be "killing music" because if these labels could avoid a middleman they probably would.  Also why is the RIAA so laissez faire about MP3 blogs? Could it have something to with the fact that both sides are making money, emphasis on the record labels?  They are getting free promo, while bloggers toil simply out of love.  Also could the influence of Google, who has just as many lobbyists as the RIAA, carry a certain amount of clout in the RIAA's unwillingness to act?

This is the case, long awaited, between Viacom and YouTube.  In this case, Viacom makes a number of requests compelling YouTube to release information as well as media and content.  While there are eight motions, they are not all granted; five are denied.  This is interesting, as we must note the reasoning behind Judge Louis L. Stranton’s decisions on July 1, 2008.
    In favor of YouTube, the motion to compel production of search code is denied, and the cross motion for a protective order of the source code is granted.  This is based on the reasoning that such a disclosure would expose a trade secret (that costs thousands of man hours) and that there is no evidence that such a tool could even filter out infringing videos.  The motion to compel production of the source code for the Video ID program is also denied on the grounds that it is also a trade secret and Viacom doesn’t make a significant showing of need.  Also, YouTube claims that they could figure it out by using it.  Judge Stranton does grant the motion to compel production of all removed videos.  Viacom claims that access to all of these files is necessary to identify any infringing videos (but burden of such a task lies on Viacom).   It is also granted that YouTube produce all data from Logging databases concerning each time a video is viewed on the website or on a third-party website.  This passes because of the insufficiency of an IP address to identify personal information.  The motion to compel production of all those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied because “No sufficiently compelling need is shown to justify the analysis of “millions of pieces of information” sought
by this request.”  He also denies the motion to compel production of the schema for Google Advertising databases, but grants for the schema regarding the Google Video Content database.  This is because the plaintiffs have already been promised the only relevant data in the database, they do not need Google’s confidential map of how it runs its advertising business.  Viacom is also denied the ability to access all private videos, except the data related to these videos that is not the actual content.  
    This is essentially the main case that I will use as an example in my paper in determining whether or not YouTube’s business violates copyright laws.  I hope to explore my other sources as well to see if there are any rulings that I do not agree with.  It is important to note that the Judge’s decision is not to shut down YouTube, but to assure that any infringement is addressed, while maintaining YouTube’s ability to function as a unique video sharing network.

            Andrew Bridges is the Google counsel on the board for this video and he brings up a couple very good points in favor of Google.  He points out one of Perfect 10's arguments, for the fourth factor of Fair Use, that Google's Image Search could severely hurt the market for a cell phone in the UK.  He pointed how ridiculous it would be if this large, very useful image search, could fail because of a single cell phone deal.  Clearly this shows that such an argument, from Perfect 10, should not be seriously considered.  He goes on to point out the Perfect 10 starts to combine trademark law with copyright law when they argue about framing.  He makes a very good case that the framing is very similar to hyperlinking, which is clearly not anywhere near copyright infringement. 

            Russ Frackman is the Perfect 10 counsel and brings up a potentially harmful argument against Google.  He argues that Google's linking is direct infringement because it links to copyrighted materials.  He cites a very good example of a South Park website that claims that it is not infringing because it is not hosting the video.  The video is imbedded on the page, but they do not actually host the video.  While this at first seems like a very strong argument, he fails to acknowledge the clear differences between Google and the South Park website.  Google Image Search is not directly linking to the website; rather a computer program is creating the thumbnails and the links.  The South Park website is purposefully linking to an infringing video.  He also points out that Google gains a lot by having their name on the screen in framing and the Image Search in general.  They are not merely providing a service.  While this is obviously true, it does not really hit the important issues.  Obviously the Image Search is important and beneficial to Google; if it was not, they would not have it.  It does not, in any way, contribute to the creation or even the linking to the infringing images.  For that reason alone, that aspect should not hold much importance.

            This source is a blog which highlights several opinions on the decision.  Some agree with my thesis while others disagree.  I will use the supporters as examples to prove my thesis and will rebut the opinions of the dissenters.  William Patry offers the opinions in the first two blog entries on the page.  Both are highly critical of the Court's decision in favor of Google.  First he points out that if you tally up the factors, Google received none and Perfect 10 received three, according to him.  This argument is highly flawed because it was actually 2-1 in favor of Google according to the case.  The second argument stated that the Court erred in its assessment of Google as "consumptive."  The case has a good explanation for why this is their opinion and it seems valid.

            John Ottaviani argues that using Copyright Law from the 1970s is not very relevant for this type of technologically-based case.  He fails to realize that it is the concept of what is copyright that has carried over for that long of a time.  Copyright law would have changed had it not been working.  They also used contemporary examples in the decision. C.E. Petit argued against the first and fourth factors of Fair Use.  She argues that they are very similar and will almost always favor the same side.  According to her, the judge used the same facts for each factor and that they are likely being double counted.  She is probably right that these factors overlap and more than they should.  They should, however count for more because of how important they are to Fair Use.  The similarity was likely on purpose.

            Martin Schwimmer wrote, "The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone)."  This is amusing, but at the same time, it makes a very good point.  Much of the argument centers on whether or not the thumbnails are the same as the image.  Removing a corner would actually resolve this argument.  It would not change the function of the thumbnails.  This shows me that the argument is being over thought and that thumbnails shouldn't be considered the same.  If such a small alteration can change an opinion that greatly, then it should not even need to be done.

    This study was conducted in 2006 by Jennifer M. Urban and Lauren Quilter, surveying the effects of Section 512 of the Digital Millennium Copyright Act on the Internet.  The two used an empirical approach to look at the notice and takedown landscape, and collected data about the number and type of notices that were sent in recent years.  Google provided all the notices the company had received between 2002 and 2005 (constituting the majority of the data), with non-trivial supplements coming from the Chilling Effects Clearinghouse.  The researchers were careful to point out a variety of issues with the data set, including a potential bias in the Chilling Effect notices, since these were self-reported cases.  The Google information also is flawed to a degree, since notices sent to a search engine like Google are not necessarily emblematic of the entire notice and takedown climate.  This is displayed by a discrepancy between the data and common perception, with music and movie companies accounting for few of the takedown notices, since they find it more useful sending takedown notices to non-search engines.  Acknowledging the need for additional data and further research, the study concluded that there a large number of claims had serious substantive questions.  While anticipating some notices to be unjustifiable, the high number of problematic notices that were found was “particularly troubling.”  Since the researchers used a high threshold of what would be considered questionable (choosing to use cases where fair use only could likely be used as a proper defense) the results are even more severe than first appear.  Even so, enough claims were made without sufficient justification or sometimes without any at all (claims regarding material which are not subject to copyright) for the study to conclude that the “implications for expression on the Internet of this extrajudicial process appear, from our limited data, significant.”
    This is going to be very helpful in my paper, since it will be one of the few but important statistical analyses I use.  Many of the other works are theoretical expositions by professors and academics, citing specific cases and expanding out the reasoning to apply to more generic cases.  However, this study uses nearly 1,000 data points to arrive at its significant conclusions that will aid me in my argument.  Most importantly, I will reference the high rate of improper claims, representing the low barrier to entry to submit even a fraudulent claim, and its negative impact on free speech on the internet.

           Eugene Goryunov gives her opinion on Perfect 10 v. Google and gives an extensive description of the case, the decisions, and the progression of Copyright Law.  In general, he strongly agreed with my thesis and agreed that Google should not be found liable.  His analysis centers on his assessment of the Court's decisions.  His first assessment is that the judge used a proper application of the "Server" test to in-line linking because "Google's use of in-line linking and framing does not constitute a "display" of images and cannot serve as a basis for finding direct liability.(516)" This supports my thesis because this holds that Google is not directly liable for copyright infringement.

            Goryunov follows this by offering his opinion on the Court's assessment of Fair Use.  He disagreed with the district court's application of the first and fourth factors of Fair Use.  According to Goryunov, "the court abused its discretion by apportioning excessive weight to the commercial nature of Google's secondary use and ignoring the highly transformative secondary use of the technology, which weighs in favor of fair use as a matter of law."  Thus, he agrees with me that the transformative use is more important than the commercial.  This supports my thesis in that the first factor leans towards Fair Use and therefore supports Google.  With regards to the fourth factor, Goryunov stated that, "the court abused its discretion in finding that Google's secondary use of thumbnail copies of P10's full-size images had an adverse effect on P10's market." He continues by arguing that Google's image search actually would not and does not have an adverse effect on Perfect 10's sales.  This also supports my thesis since it claims the fourth factor is Fair Use and is thus supporting Google.

            He continued by speculating what he believes could be a useful addition to Fair Use.  He states that some people have suggested adding a fifth factor that would use public policy as a guiding force.  This would help Google and my thesis, for Google's image search helps the public obtain images greatly, even those which are not infringing on copyright.  He goes on to agree with the District Court's decision to find Google not secondarily liable.  This pretty clearly also supports my thesis and Google's argument.

            Unlike the other cases I will discuss in my paper, MGM v. Grokster actually appears to contradict my thesis.  Grokster distributed free software products that allowed computer users to share electronic files through peer-to-peer networks.  MGM sued Grokster for their users' copyright infringements.  They claimed that Grokster knowingly and intentionally distributed their software to enable their users to reproduce and distribute their copyrighted works.  The Supreme Court decided in favor of MGM, which would seem to be bad for Google.

            While both and Grokster and Google seem similar, in fact, their differences, in the eyes of the Court are actually very important.  Both involve a type of peer-to-peer file sharing which may or may not involve items that are copyrighted.  MGM showed that Grokster's services contained more than 90% copyrighted material.  In fact, this information did not surface until the case was brought to the Supreme Court.  Without this information, the Appellate Court decided in favor of Grokster with the main reason being that they distributed non-copyrighted material.  While I have no proof that most of Google's images are in fact not copyrighted, it is Perfect 10's job to bring that information forward.  Since they have not, one can only assume that Google's image search contains mostly Fair Use images.

            Another reason why Google differs greatly from Grokster is the purpose behind their service.  Grokster, following the Napster case, had an advertising campaign targeting the users who were looking for an alternative to Napster.  This means that they were targeting people who had been illegally downloading on Napster.  Hence, their main source of revenue is from the file sharing of copyrighted works.  Google, on the other hand, has shown no evidence of focusing on copyrighted works.  Their technology is set up like Grokster in that they do not always know what links are being shared, but their main focus is greatly different.  It is the difference in philosophies and the users' use of the services that shows that Grokster is not a good comparison with Google.

           The A&M Records, Inc. v. Napster, Inc. case is cited several times throughout the Perfect 10 v. Google case and many of the decisions made in this case are vital to the outcome of the Google case.  First of all, the District Court's decision to grant a preliminary injunction for an abuse of discretion originated with the Napster case.  Also, the Napster case is similar because they both stress copyright infringement and had trial de novo, or new trials with a different decision maker.  For my paper, I can look at the examples from the Napster case which were cited in the Google case.  Regardless of whether or not they support my thesis, I can analyze whether or not these aspects should be part of decision making in copyright.

            Preliminary injunctive relief is available to a party that demonstrates either that they have "a combination of probable success on the merits and the possibility of irreparable harm" or "that serious questions are raised and the balance of hardships tips in its favor." These conditions were outlined in the Napster case and used as criteria in the Google case.  In the Napster case, this meant that A&M Records had to show that Napster's program for file sharing could cause irreparable harm to their copyrighted works or that it at least tips the burden towards A&M Records to stop the infringement of the illegal downloading.  In the Napster case, these conditions are very clear and seem to be a very necessary assessment to make in cases of copyright infringement.

            These conditions were used in the Google case and according to the Court's decision, support Google's argument. This was because Perfect 10, in the Court's opinion, was unable to show either of these criteria.  It does not seem to be that important of a criterion in the Google case, but the seemingly black and white use in the Napster case shows how important this type of analysis is in copyright infringement.  Because it supports my thesis, it is important to show that the criterion is essential for keeping things fair under copyright.  The Napster case shows that this analysis, which supports Google, is very well thought out and essential for Fair Use.

                This is the case and decision handed down by the United States District Court that is amending the decision of the Central District Court of California.  My paper will focus on this decision and the reasoning behind its decision.  First, it summarizes the case, which is that Perfect 10, Inc. sued Google, Inc. for infringing their copyrighted photographs of nude models among other claims.  The district court originally prohibited Google from creating and publicly displaying thumbnail versions of Perfect 10's images.  They did, however, allow Google to link to third party websites that display infringing full-size versions of Perfect 10's images.  Both Perfect 10 and Google appealed the decision.

            The decision also discusses the background of the situation including the use of the internet, HTMLs, search engines, and specifically how "Google Image Search" works.  Generally, Google uses HTML instructions to access other websites and, through a third-party website, shrink their pictures or graphics down into thumbnails.  These thumbnails are displayed in "Google Image Search" and linked to image where it is stored on the website publisher's computer.  It also discusses the background information of the previous interaction between Perfect 10 and Google.  This included notifications sent from Perfect 10 and Google, and the time of the filing of the suit.

            This case also discusses the "Standard of Review" involved in the decision.  This includes the aspects of Copyright law that are involved and how they apply to this situation. It also discusses how Perfect 10 accuses Google of Direct Infringement, its specific requirements, Perfect 10's argument for it, and Google's defense (Fair Use).  It discusses how Google is not secondarily liable for copyright infringement as well as Amazon.com's involvement and their innocence according to the same reasoning.  Finally, they conclude that since Perfect 10 is unlikely to overcome Google's Fair Use defense, the district court's decision is reversed and Google is innocent for both the direct and secondary infringement charges.

            This is the original case brought against Google.  It both supports and rebuts my thesis.  The decision was not a full victory for Perfect 10, but compared to the appeal, it was more successful.  I will use this case to point out the flaws in the decision and to contrast Google's argument with the appeals case.  Just like the case in the Court of Appeals, this case focuses on the question: "does a search engine infringe copyrighted images when it displays them on an "image search" function in the form of "thumbnails" but not infringe when, through in-line linking, it displays copyrighted images served by another website?"

            Perfect 10 moved for a preliminary injunction against Google and Amazon solely based on copyright claims.  They wanted to prevent Google and Amazon from displaying thumbnail copies of their copyrighted images and also from linking to the third-party websites that host the infringing images.  The court decided that Google's use of thumbnails likely do directly infringe Perfect 10's copyright.  They also decided that Perfect 10 will likely not succeed with its vicarious and contributory liability theories. Just like the appeal, this case goes pretty far into the details of both Google and Perfect 10, as wells as the charges and how the charges either apply or do not apply.

            In the charge of direct infringement, Google defends themselves by arguing that many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and to the extent that its actions do implicate those rights, such use is fair according to Fair Use.  The court rejects the Fair Use argument partly.  They state that Google's use of the thumbnails is commercial and thus against the first part of Fair Use. In my paper, I will argue against this decision because an overwhelming majority of Google's commercial gain from thumbnails is not copyright infringement.  They state that Google's use is very transformative and that their use no greater than necessary to provide their goal, which is providing effective image search capabilities.  These assessments show that the Court believed that Google was compliant with the second and third factors of Fair Use, and agrees with my thesis.  They argue that Google's images likely do harm the potential market for Perfect 10.  This would mean that Google infringes upon the fourth and final factor of Fair Use.  I disagree on the grounds that Google is not even creating these images and thus the burden falls upon the people downloading the images. 

Intellectual property is taking on new forms in the digital media market. Consumers are exploring their creative license through the use of multimedia service providers in unprecidented ways. This surge of consumer digital media use is also bringing to a head new conflicts between intellectual property rights Creative Commons, and Digital Rights Management. This book explores this phenomenon and the various ways in which major digital media service providers are being effected by this rapidly changing market environment. Overviews of the business performance, legal goings on, and multimedia services of such industry icons as Google, Inc., Metro-Goldwyn-Mayer, Sony BMG, Napster and more are discussed.

In reference to my project, the book looks at precident intellectual property cases and gives insights into how the concepts within the 1976 Copyright Act are applicable to the cases. The author also notes that Google has aside $200 million in escrow to deal with inevitable litigation, lists the various number of litigations involving YouTube, and notes that these cases will set important precedents for future review of copyright law as it pertains to Internet videos (253).

Rimmer, Matthew. Digital Copyright and the Consumer Revolution: Hands Off My Ipod. Massachusetts: Edward Elgar Publishing, Inc., 2007

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 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.

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.

                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.

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.

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.