Google Book Search Redux

Bill Cash has posted a strong criticism of the legality of the Google Book Search program on Marcus' World.  The critical question is whether the library component of the program--in which leading libraries allow Google to scan all of parts of their collections, in order to feed search results that are small snippets of various books--is a fair use of these materials. The publishers say no, and Google and the libraries say yes.

Fair use, very roughly defined, provides for legitimate exceptions to strict observance of copyright law. It's what allows you to photocopy book pages without buying the book, and arguably to check the book out of the library in the first place (along with the "first sale doctrine," which I discuss below). Let's not forget that libraries would not exist in a perfect world for publishers; everyone would have to buy everything.

Google's commercial potential from this program could indeed mean that it is not a fair use, as Bill argues.  I have been concerned about Google's commercial designs since the program began, and argued in Biomedical Digital Libraries that the library-results pages should be a commerce-free zone.  As of now, Google has promised not to display any advertisements on pages that result from library book searches.

If Google changes course and becomes commercial with the library materials, I would agree with Bill. Until then, I feel that it a red herring for publishers to lament the fact that big bad Google doesn't have the courtesy to contact them for copyright clearance of the library books.

The high majority of the library books that Google is scanning are of absolutely no commercial significance to the publishers.  It's disingenuous to argue "theft" of something that no longer has monetary value. Any bestseller that Google scans would be licensed appropriately from the publisher, so they really have nothing to worry about.  The library materials do have historical and cultural value, which is why I support Google Book Search despite my reservations.

Our copyright laws predate the Internet, and are now woefully out of date. The argument that Google Book Search violates copyright is one interpretation of this law. You could say, "Just write a new law then. Don't break the old one."  But that assumes that the  law is being broken.  A very important library concept, in addition to fair use, is the "first sale doctrine." Essentially, a  library is free to redistribute any book that it has lawfully acquired. I argue that the library portion of Google Book Search lies comfortably within the parameters of the first sale doctrine, and that there is no need to let old notions trample new possibilities.

Comments

[Johnny]

It's interesting to see how your thoughts on this subject have evolved. I enjoyed reading your piece in Biomedical Digital Libraries, which offered a more "libary"-oriented angle on the subject than I'd previously considered.

While I've pretty much stuck to my belief that what Google's doing should be legal, I've wavered on the actual legality of it. Your invocation of the first sale doctrine is a perfect example of the gray area. If one could define digitization of a book and distribution of snippets from it as "lending," rather than "copying," then Google should be in the clear.

I'm curious about the sophistication of copyright law's definition of "copying." My sense is that copyright law protects "functional copies:" copies that can effectively replace the original object (such as digital audio files or complete e-books). If that's the case, then Google's snippets certainly shouldn't qualify as copies. Forbidding Google from digitizing a book to distribute snippets would then be like forbidding music artists from ripping CDs in order to pull out fair use samples to include in their own work.