The Congressional Research Service has published a balanced and succinct analysis of the legal questions raised by library participation in Google Book Search. The piece does not drown in legalese, and reading it clears the brain of the spin surrounding this topic.
The central question is whether the program is a fair use of copyrighted works, or a massive violation of copyright. Google aims to display snippets of the search results from books, although it would scan the entire work. In many cases people would choose to buy these books, which benefits publishers and authors. In even more cases, people from across the globe--who would otherwise never see it--would have access to a book that a library has purchased legally. Publishers say the very act of scanning is the copyright violation, whatever happens afterwards.
Google says the ends justify the means. I agree, with some hesitation, because of the inescapable fact that Google is a business. Such large-scale attempt to enhance the reach of cultural treasures is the role of government, working in concert with the private sector. If this were the case today, the program would face hardly any resistance.
Before I get started I have to offer that I am commenting by request. This is a significant honor I will not be able to repay by offering an incisive, helpful view on the issue. However, I will point out that I am an Important Law Person and, carrying a 3.9 GPA, should be able to do better than this. Since I can't, I'll just flaunt my credentials. :)
Generally, based on my as yet limited understanding of copyright law, Google's project simply does not qualify under the fair use exception. It is a highly commercial enterprise, because the company expects to reap significant increases in ad sales and will also be in a position to command commissions from the web retailers to whom it directs searchers who want to buy the books. I believe that alone should disqualify it from the fair use exception. Further weighing against it is the lack of any serious attempt to contact publishers and obtain permission for their books. They say that it would be too difficult and, more tellingly, costly, for them to contact each publisher about each book. If fair use is claimed, then I think the complaint about high cost cuts against fair use because it is further proof of the commercial nature of the enterprise.
Therefore, I think Google's best strategy would be to seek a change in the law, perhaps through the judicial route (if such an avenue is open). The report cites the Sony case from 1984, which is definitely a great case that established the legality of the VCR's record feature. But it did so on the basis that Sony could show substantial noninfringing uses -- 90% of people using VCRs were doing it for noncommercial purposes at home. It's hard to see how Google's use qualifies under the Sony regime, and I should note briefly that Sony was reaffirmed in last year's Grokster decision: technologies that substantially infringe on copyrights are illegal.
I personally think Google Print is a bad idea, conceived by a high-flying company that has finally begun to attract critics and is unused to dealing with them. Google is being dragged into the mud where Microsoft has been for about eight years, and they don't know how to handle it; hence, the clunky name change and the backpedaling on the opt-out policy. I think they believed they could do no wrong and would somehow win this battle in the court of public opinion. But there are real dangers in centralizing an index of books in one place. The cost *is* prohibitively high, whether you do it legally or not, and not every library wants to have its books made inaccessible for a time and have a fraction damaged or destroyed by the project. Worse, all good databases attract hackers, and there are already people who have discovered how to read the entire contents of certain books through the search feature. (See http://www.micropersuasion.com/2005/12/read_most_of_or.html. ) What will happen if Google's servers are compromised and entire collections are stolen? Libraries might give books away (for a time), but publishers don't. I believe copyright law, without significant legislative or judicial changes, will protect publishers from this unwanted appropriation of their most important assets.
And someday when I'm out of law school, I'll be able to give you a better reason why. :)
Posted by: Bill Cash | January 25, 2006 at 06:57 PM