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Google Responds to Authors Guild Lawsuit
Posted by
ScuttleMonkey
on Wed Sep 21, 2005 03:22 PM
from the better-than-fight-night dept.
from the better-than-fight-night dept.
Phoe6 writes "Google has responded to the Authors' Guild lawsuit of "massive copyright infringement". They point out that the Library Project is 'fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself, which allow everything from parodies to excerpts in book reviews.'"
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Google Subpoenas Microsoft & Yahoo 164 comments
eldavojohn writes "Mercury News is running a story reporting that Google has filed subpoenas with Microsoft and Yahoo, in relation to their legal battles with publishers and authors. Google faces charges of massive copyright infringement surrounding its online book project. The company claims that Microsoft and Yahoo have taken the exact same steps in acquiring print-related rights. Google therefore wants to show that 'everyone is doing it.'" From the article: "McGraw-Hill Cos. and the Authors Guild, along with other publishers and authors, contend that a Google project to digitize the libraries of four major U.S. universities, as well as portions of the New York Public Library and Oxford University's libraries, ignores the rights of copyright holders in favor of Google's economic self-interest ... Is the library of the future going to be open? Or will it be controlled by a couple of big corporate players?"
[+]
Your Rights Online: $125 Million Settlement In Authors Guild v. Google 238 comments
James Gleick writes "Authors, publishers, and Google are announcing a huge settlement deal today in their lawsuits over the scanning of millions of copyrighted books in library collections. Google has agreed to a huge payout for books that were scanned without permission, but now they'll be allowed to scan the books legitimately. Most important, they'll be able to put millions of books online, including those still in copyright — not just for searching and not just in snippets. There is a groundbreaking new licensing system meant to make the books as widely available as possible while protecting the authors' copyrights and enabling them to share in the revenue. Some will differ, but personally I think this is a wonderful outcome, for readers and for authors alike."
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This is no different... (Score:4, Insightful)
Re:This is no different... (Score:4, Informative)
Parent
Re:This is no different... (Score:3, Informative)
Re:This is no different... (Score:5, Insightful)
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The Internet is free (Score:5, Insightful)
Also, to be honest, times change. Because Web search engines existed before today's copyright madness, they've been effectively grandfathered in. Libraries are the same way; if they were invented today the Author's Guild would probably be lobbying against them.
Parent
Re:This is no different... (Score:3, Informative)
new product (Score:5, Funny)
Enter the name of the person/company you want to sue and click "Sue". We'll e-mail the court date to you, along with relevant precedent to your GMail account!
omg... (Score:3, Insightful)
a well, if you ask me there is nothing wrong with the way google does this. they do not make the entire book availible, only very small parts of it. and if I remember right, amazon has been doing the same thing too for quite some time.. they just didn't have a search engine to search through ALL the books.. you could only search in one.
amazon has permission; google does not (Score:3, Informative)
Amazon does this with the participation of the publisher, and there are no excepts printed if the publisher objects.
Google turns this on its head and says publishers must opt out.
It's totally different.
The daily insight (Score:5, Funny)
Re:The daily insight (Score:5, Funny)
That's what happens on slashdot.ru
Parent
my.mp3.com (Score:5, Interesting)
If I remember correctly, mp3.com was found to be guilty of making internal copies of all the CD's they touched. Isn't Google doing the same thing, eg. making a massive amount of copies of the books they touch? Insofar as it isn't legal for other corporations to put entire books through the photocopy machine, or use a single copy of software across all computers (without a corporate license)?
Re:my.mp3.com (Score:3, Informative)
In the case of mp3.com, they were supplying a copy of music that wasn't taken from your purchased copy. In effect, they were giving you a copy of different music than what you purchased. That would be disallowed as copyright infringement.
Re:my.mp3.com (Score:3, Informative)
It's language like this in the opinion that makes me think the problem was more with internal copying than with external copying:
In the case of mp3.com,
Re:my.mp3.com (Score:4, Interesting)
If Google scans in this stuff to their database, that's going to get them in trouble right there, unless they have some sort of defense. It doesn't matter how much they show to users down the line (although that can also be infringing).
Parent
From the article linked from the blog (Score:5, Informative)
The leading decision that considered the fair use issues relating to search engine operations is Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). Arriba Soft operated a search engine for Internet images. Arriba compiled a database of images by copying pictures from websites, without the express authorization of the website operators. Arriba reduced the full size images into thumbnails, which it stored in its database. In response to a user query, the Arriba search engine displayed responsive thumbnails. If a user clicked on one of the thumbnails, she was linked to the full size image on the original website from which the image had been copied. Kelly, a photographer, discovered that some of the photographs from his website were in the Arriba search database, and he sued for copyright infringement. The lower court found that Arriba's reproduction of the photographs was a fair use, and the Ninth Circuit affirmed. With respect to the first factor, "the purpose and character of the use, including whether such use is of a commercial nature," 17 U.S.C. 107(1), the Ninth Circuit acknowledged that Arriba operated its site for commercial purposes. However, Arriba's use of Kelly's images was more incidental and less exploitative in nature than more traditional types of commercial use. Arriba was neither using Kelly's images to directly promote its web site nor trying to profit by selling Kelly's images. Instead, Kelly's images were among thousands of images in Arriba's search engine database. Because the use of Kelly's images was not highly exploitative, the commercial nature of the use weighs only slightly against a finding of fair use.
Industry groups are stupid (Score:5, Insightful)
It seems like very time someone comes up with some cool thing that makes the consumer's life easier, the affected industry panicks and attempts to get the technology quashed. In this case I'd think that authors would want their material easily referenced in part, because they might actually sell copies if people need the information. Without something like this available, authors have more chance of remaining in obscurity or never having the chance to share their work with a larger audience.
Industry groups are just dumb.
Re:Industry groups are stupid (Score:3, Insightful)
I think these industry groups are just afraid of innovation because they don't see where it will lead... Also once Google has the full text of every book in existence on-line, some third party might be able to steal the data and "liberate" it - that would definitely be bad for them.
Should be Opt-In procedure (Score:4, Insightful)
From Google, re: removing your book.
"If you're not a Google Print partner and want us to avoid your books, you'll need to provide us with a small amount of information about yourself as well as a list of the books you don't want in Google Print. Unless you specify otherwise, we'll use your information only to verify that you are indeed the copyright holder of that particular book."
Opt-In doesn't work for out-of-print books (Score:5, Insightful)
And as a practical matter, Amazon/A9 already took care of indexing the books whose publishers are willing to opt-in.
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Opt-In makes sense (Score:5, Insightful)
While I can understand some of the angst people are directing at Google, here's the real issue:
How the hell do you practically determine (let alone contact) the current copyright holder for books that have long been out of print?
Amazon hasn't faced this problem because they actually sell books. Amazon is only scanning and making searchable those books that it can obtain and sell -- and hence can contact the publisher. It's not an issue of Amazon being "honorable" and Google not.
Google is going to be rendering searchable books that you can't find on Google, or in Barnes & Noble, but only in your library, or maybe a distant university library. If they had the burden of tracking down who, if anyone, still cares about the book, it would remain lost to you. What Google is doing is simply saying, "if you care about your book, just let us know."
And then when you contact Google, proving you're actually the copyright holder isn't an onerous "hoop" you have to jump through. Frankly, I'm surprised you're complaining about it. Even the DMCA requires copyright holders to prove they hold the copyright when they issue a takedown notice.
Parent
no shit (Score:5, Interesting)
This is from copyright.gov:
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
I think google's implementation of this project very clearly falls under scholarship and/or research purposes. Giving the reader brief snippets of the written work along with bibliographical information so they can find a copy of the work themselves certainly satisfies (3) by not reproducing a substantial portion of the work and (4) by, quite possibly, increasing the demand for the work when users desire to seek out a copy to actually read/study.
Re:no shit (Score:3, Insightful)
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
Ahhh yes, but is the *main* reason Google is doing this indexing because they are looking out for research interests or for their own bottom line in advertising revenue?
If we ignore their other intent and instead concentrate
Re:no shit (Score:4, Insightful)
The Google index of the book must contain the entire text. This means they have reproduced a substantial portion of the work (all of it) internally.
Parent
We gotta stop this approach now. (Score:5, Insightful)
No doubt there are two problems with this: the first seems to be that authors (to the best of my knowledge) haven't been asked either piecemeal or via organizations like the Authors' Guild for permission. The second is that Google will no doubt be making money as a result of providing this service and everybody else wants a cut.
However, we have reached an unfortunate point with copyright and fair use where we'd rather halt innovation than admit that copyright holders' expectations have reached a point of making it cost- and time-prohibitive to meet their demands and are to the point of stagnating not only the public domain but technologies and services that deliver or even touch upon copyrighted content. In this sense, creating a scenario that is not unlike the movie industry's dire predictions about the VCR in the early 80s.
It would be best, of course, for Google to attempt to work out an amiable solution with authors without crippling their service to an unreasonable extent, but I feel that the intent of fair use (if not its prevailing interpretation) falls in their favor... as does the bottom-line for both Google and the membership of the Authors' Guild.
two separate programs (Score:5, Informative)
I e-mailed Google to ask if I could get my search results to show up on regular google searches, and they said they were studying the possibility. I think what that really means is, they got sued, and they're looking around for a life preserver because they don't know what to do. IIRC, there actually was a period where my books would show up on a regular google search, but now they don't, which is probably google's way of reducing their liability.
It's too bad that the opt-in publishers' program and the opt-out library-based program seem to be joined together in this way, since the former could have been a really good program, but the legal problems with the latter are dragging it down.
Author's Guild (Score:5, Interesting)
I know a couple of best-selling authors personally, and none of them have a high opinion of the Author's Guild.
From a Librarian (Score:5, Interesting)
I don't think that this is necessarily fair use. The article linked to in post presents a case which relates to images, and traditionally copyright around images has been dealt with much differently than copyright related to texts, so I'm not sure how relevant the stated case might be. That being said, the one major flaw I see is that the libraries Google is partnering with purchased the books, and Google is 'borrowing' those books. If I borrow a book from my library, I am not allowed to photocopy the entire book. Maybe the Library has the right to do so for preservation (i.e. backup) or other purposes, but I do not. Even though Google is trying to hold to fair use practices through what it offers to its users, Google itself seems like it is likely to be breaking copyright by holding full copies of these works.
Now, should the publishers be making a big fuss? Well, maybe and maybe not. It doesn't appear that Google's effort will harm publishers, and is likely to help them. However, Google is not the only player out there who would be interested in massively copying monographs, and if the publishers let this pass, it might set a precedent which could come back to bite them. It isn't clear to me that the publishers are in the right, or that Google is entirely in the wrong, but if I were a publisher, I'd do the same thing, most likely.
I believe the other crux of the problem is that Google bulldozed its way forward with this project. Imagine if it was Microsoft instead of Google doing this; the slashdot comments would probably be entirely different. I admire Google moxie in pushing this issue, but I also am pained that they lacked the patience to work out some of the issues with the publishers before they pushed forward.
Could a bot retrieve a whole work? (Score:5, Interesting)
A more interesting question is whether someone could write a bot that could run a whole bunch of queries and eventually piece together an entire work.
And if so, then I'd venture that Google needs to do something to assure the Authors Guild that they protect against that kind of abuse. Not that I think it would be all that difficult.
Re:Could a bot retrieve a whole work? (Score:5, Interesting)
Parent
For those who do not understand (Score:5, Interesting)
Try the following experiment.
Go to Google Print, search for "Image Processing Handbook", The first item is the J.C. Russ book. Click on it. This is a recent, copyrighted book.
Now search for "noise", go to page 19. You can read the book from page 17 to 21. Notice the pretty pictures.
Now look for "coarsening", a rarish word found on page 21. Select page 21, and Lo and behold you can now also read page 22 and 23. Repeat ad nauseam.
In most book a few pages are permanently blotted out, but by and large you can easily read *most* of the book.
Try the same trick with any book in Google Print, it works.
THIS goes beyond fair use. The guild has a point. They will win that case, unless Google scale back their offering dramatically, to the point where is has no value beyond what Amazon (say) offers now.
Do you understand now? Thanks.
Re:Copyright Law (Score:5, Insightful)
Parent
Re:Copyright Law (Score:5, Informative)
What TFA does mention, but kind of glosses over, is that copyright holders have to opt-out of having their works marked as 'not copyrighted'. It seems that Google is being a little disingenuous. They know that not all copyright holders will opt out. It's kind of like saying 'If Tom Clancy does tell me otherwise, he won't mind if I photocopy his new book from the library.' IANAL, but I think it should be an opt-in system, no?
Parent
Re:Copyright Law (Score:5, Informative)
See this page:
http://print.google.com/googleprint/screenshots.h
[a] Non-copyrighted works: displayed in full.
[b] You submit your book: few pages shown.
[c] Default: very small snippet shown.
[d] you opt out: nothing shown.
If you are an author, you are in [c] by default, which lies under fair use. NO ACTION ON YOUR PART IS NEEDED.
ONLY IF YOU WANT TO GO To [D] DO YOU NEED TO OPT OUT.
(Or. to go from [c] to [b], you would have to opt in.)
Parent
Re:Copyright Law (Score:5, Informative)
IANAL, but have done some research into copyright law. Copyright exists not only to protect the author/publisher, but also to provide legal access to information. By copyrighting a book, the publisher has agreed to allow fair use of the material. Google is allowing opt-out as a courtesy to publishers, not through any legal obligation.
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Re:Copyright Law (Score:5, Insightful)
So "fair use" isn't avoidable -- it's part of the entire package. If you want to use the restrictions of copyright on your works, you need to allow for fair use of your works as well. You can't pick and choose.
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Re:Copyright Law (Score:5, Interesting)
A. Under Fair Use, we have the right to display exerpts of ANY book, copyright or no.
If they dont copy the whole book, but rather, store the book as an index, they are on (from my little understanding of the law) fairly solid ground here. If they store the book, in a serially readable fasion, they might have some greater issues with the scanning. But if they never actually store the book in a serially readable manner, and merely make trees out of the book, they really dont need an authors permission at all.
IANAL but Google scanning and indexing of the books has some case law behind it, as being leagle, also. If you read the linked article (http://www.policybandwidth.com/doc/googleprint.p
you will see an argument that the storing of the books, totally, with the use of only providing exerpts of the book is also leagle.
So what google is saying is "look, I can do this one way or the other, with out without your permission. However, if you REALLY dont want to be included, then hey, no big deal, I will respect your wishes. I dont have to, but I like being polite."
So Google basically it doesnt have to be opt in or out. But Google is being polite in letting you opt out.
It is interesting to me that on slashdot people are so "Screw the man" when it comes to the RIAA defending itself from people copying copyrighted works. But they feel that a corporation should not be able to use principles of fair use. Consider the priciples, not who is invoking them.
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Re:Copyright Law (Score:3, Informative)
Re:Copyright Law (Score:5, Insightful)
No, that is NOT what Google is doing. From the referenced link:
You don't have to be a lawyer to understand that this certainly falls within Fair Use under U.S. copyright law.
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Re:Copyright Law (Score:5, Insightful)
Corporate America of course won't be happy until you pay a per-word usage fee for reading a library book.
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Re:Copyright Law (Score:5, Informative)
This is from copyright.gov:
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
I think google's implementation of this project very clearly falls under scholarship and/or research purposes. Giving the reader brief snippets of the written work along with bibliographical information so they can find a copy of the work themselves certainly satisfies (3) by not reproducing a substantial portion of the work and (4) by, quite possibly, increasing the demand for the work when users desire to seek out a copy to actually read/study.
Parent
Re:Copyright Law (Score:3, Insightful)
With regards to the four factors, you have to consider all of them, although fair use is not a simple matter of adding them up; they have differing weights depending on the circumstances involved.
Here, 1) the use is commercial and non-transformative, but does seem to have a s
Re:Copyright Law (Score:3, Funny)
Now the -1 Troll and -1 Flamebait stuff...that I want money for.
Re:Copyright Law (fair-use definitions) (Score:3, Informative)
That method will not work according to Google in this article [internetweek.com]:
"Anybody who's clever enough can download the entire book," Hull said. Not true, said Jim Gerber, director of content partnerships for Google. "Martin Heidegger On The Way," for example, wa
Re:Google Fanboism (Score:3, Insightful)
Not if it's the functional equivalent of a screen shot.
Mod parent up (Score:3, Informative)
Re:for it to be fair use (Score:3, Interesting)
You need not own the books for it to make fair use of their contents. Direct quotation is a case to point. If I were required to own a copy of all books that I use as references in essays/assignments, then I simply could not afford to do them.
Imagine the costs of doing a PhD under those conditions!
Re:so if you dont' want your book.. (Score:5, Interesting)
basically googles stance is that they can do whatever they want with the librarys books unless you specificially tell them to not do it.
Actually Google, and the law as I read it both say Google can reproduce and publish small excerpts of any book they want to, but if you ask them not to they will exclude your book to be nice. Legally, they have no such obligation.
which actually sounds a bit funny as they seem to be searchable in full and basically readable in full as well
Being searchable in full is sort of the point, and is metadata, i.e. data about what is in a book. That data is a fact and is not copyrightable. As to entire books being viewable, that should only apply to public domain works and works where the copyright holder gave Google their permission. If you can view more than a few pages of any one book, and you don't think it falls into one of those categories, you should submit it as a bug.
making indexes that contain the copyrighted material in full is copying - or else we would have a very convinient loophole to destroy all copyrights.
Sort of like copying a work in RAM, and/or across network devices is copying? The courts have taken into account the intent and the end result of this sort of copying before. If the end user only sees a few pages, then that is probably what the courts will rule is the copied portion in any given instance.
Parent
Re:Similar to mp3.com lawsuit (Score:4, Informative)
Law.com [law.com] is reporting that MP3.com [mp3.com] has filed a malpractice lawsuit again Cooley Godward [cooley.com], a law firm, alleging that it was responsible for allowing MP3.com to launch and subsequently be sued for copyright infringement by giving bad advice on the legality of My.MP3.Com ( MP3.com Sues Cooley Over Legal Advice [law.com] ). The charges are quite loaded, alleging that Cooley was basically inept their legal analysis of fair use and other copyright doctrines, and perhaps even misrepresented to MP3.com about expert testimony the Cooley firm had secured.
This isn't a small lawsuit either. MP3.com wants $175 million.
Parent
Re:Google-Watch wrote to The Authors Guild in July (Score:5, Interesting)
Many Google acolytes like to point out that Google already grabs much of the web in its entirety, which is copyrighted by default.
This statement is far too general. Could not the same claim be made of any sytem that categorizes books and journals so a potential user locates them - like a library card catalog?
Pointing to a resource is a much different animal than illegally copying the resource for one's own gain - financial or otherwise.
Furthermore, the prohibition of copying copyrighted works specified in Section 108 of the copyright act is for libraries and archives, and even there specifies a copy can be made if the copyright notice is maintained, it's not for financial gain, and isn't available to people outside of library/archive premises. See: http://www.copyright.gov/title17/92chap1.html#108 [copyright.gov].
Of course, the idea of 'premises' is laughable in the Age of the Internet, but I think the point you tried to make citing Section 108 is a real stretch and in no way bears any resemblance to what the law intends.
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