Copyright Clash

Sergey Brin and Larry Page don't think small. While still graduate students at Stanford in the mid 1990s, the two began working on a way to digitize all the world's books and make the content of those books easily searchable.

They wound up postponing that project to pursue another of their big ideas: a revolutionary new way to search through huge amounts of electronic data. Eight years ago they built a company around that idea, and that company--Google--is now the number one search engine in the world, with annual revenues of more than $8 billion.

Brin and Page, however, never abandoned their idea of digitizing the world's

libraries. And in December 2004 they took a huge step toward making their dream a reality when they announced a deal to digitize books in the libraries of Harvard, Oxford, Stanford, the University of Michigan and the New York Public Library. The largest research and academic library system in the world, the University of California, also signed onto the Google Book Search project in August.

However, the project has infuriated many authors and publishers. They claim that by digitizing thousands of books that are still under copyright, Google is committing infringement on a massive scale. In September 2005, the Authors Guild filed a class action suit against Google on behalf of writers. The next month, five of the world's biggest publishers filed their own infringement suits against the company. All these cases are currently in discovery, and the parties expect to make summary judgment motions early next year.

The ramifications of these cases could be huge, stretching far beyond the publishing field and affecting all content-publishers and Internet companies.

"All copyright owners should care [about this case], because a victory for Google will reduce their ability to control how their works are reproduced," says Robert Clarida, a copyright attorney at Cowan, Liebowitz & Latman.

Opt-Out Burdens

Google Book Search is a clear violation of copyright law--at least that's what Thelen Reid & Priest copyright attorney William Patry used to believe. "I thought Google would allow [users like] me to read the whole copyrighted book online," he says.

However, Google puts the full text of a book online only if it is in the public domain. If a book is under copyright, Google lets users search the entire book, but only displays short snippets of text around the search terms.

Moreover, Google lets copyright owners opt-out of the search program on a book-by-book basis. The program will not show the contents of a book--not even snippets--if the copyright owner tells Google to exclude the book from Book Search.

This opt-out plan turns copyright law on its head, according to Allan Adler, vice president of the Association of American Publishers, which is backing the publishers' suit against Google. Whereas copyright law generally holds that you can't use a copyrighted work without the permission of the copyright owner, Google is claiming it has the right to use a copyrighted work unless the copyright owner objects.

Google's standard puts an unfair burden on rights owners, Adler claims. "Copyright owners would spend all their time monitoring whether anyone is using their works without permission."

Google responds that it is often impossible to locate a book's copyright owner. So if the company had to seek prior permission from copyright owners, a large percentage of books could never be included in Book Search. "There would be a huge gap if we or anyone else had to get permission from rights owners," says Alexander Macgillivray, senior product counsel for Google.

Fair-Use Snippets

The heart of Google's argument is that it doesn't need permission from copyright owners because Book Search shows only snippets from copyrighted books.

"What users can see is incredibly restricted," Patry says. "So I think it is fair use."

But critics counter that Google isn't just copying snippets of copyrighted books and putting these snippets online--it is making a complete digital copy of each book and storing this copy on its servers. Such wholesale copying, the authors and publishers claim, is not fair use.

The courts have repeatedly held, however, that the fair-use doctrine allows a defendant to copy an entire copyrighted work, so long as the copying is a "transformative use"--such that the copy serves a different purpose than the original work. For instance, in Kelly v. Arriba Soft Corp., the 9th Circuit ruled in 2003 that the defendant's search engine could lawfully show, in thumbnail form, complete versions of plaintiff's copyrighted photos. The court found this was a transformative use because the purpose of defendant's site was to help users locate images, and the site's tiny photos did not aesthetically substitute for the plaintiff's larger, high-resolution images.

In a 2006 decision, Bill Graham Archives v. Dorling Kindersley Ltd., the 2nd Circuit found there was transformative use when a book publisher reproduced, in tiny form, six posters from Grateful Dead concerts and used those images to help illustrate a coffee-table book about the band's history. The court noted that the book used the images for historical purposes, while the original posters promoted concerts and were artistically expressive. Moreover, the images in the book were so small, they couldn't substitute for the aesthetic experience the original posters provided.

Still, critics assert that what Google is doing isn't transformative. "Google is just copying information," Adler says. "Copying it into a different media doesn't make it transformative."

Money Matters

Authors and publishers want Google to pay for the information it is taking from their books. "What Google is doing is no different than what libraries do by adding books to their collections," Adler says. "Libraries don't have the right to simply stock their shelves with books; they must buy them. And that's what publishers expect from Google as well."

Supporters of Book Search claim the library analogy is wrong, because Google's program won't hurt book sales. "Showing a sentence or two can't harm the market for a book," Patry says.

On the contrary, Patry claims, the program provides free advertising that can help boost sales by connecting interested readers with books of which they were unaware. He offers himself as an example: "I bought 70 books this year because I found out about them through Google Book Search."

This isn't enough for those suing Google. They want to control when and how their copyrighted works are used online--and they fear their ability to exploit works online will be lost if Google prevails.

"If Google can do this, then so can anyone else," Adler says. "Then the publishers' right to exploit works in any way other than selling hard copies is gone."

Meanwhile, others fear dire consequences if Google loses. "Digital technology ?? 1/2 inevitably involves copying," says Jonathan Band, a copyright attorney in Washington, D.C. For instance, when a person goes online, the browser's cache keeps persistent copies of every Web page that is viewed.

"There must be an understanding that [such] copies have no economic value and they don't hurt anyone, so they are OK," Band says. "Otherwise all computer manufacturers are contributory infringers and all computer users are direct infringers."

Contributing Author

Steven Seidenberg

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