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Ruling May Impact Google Book Search Case
Posted by
Zonk
on Sun Feb 26, 2006 08:26 AM
from the their-lawyers-must-be-workaholics dept.
from the their-lawyers-must-be-workaholics dept.
jsherman256 wrote to mention an NYT article discussing another possible problem on Google's legal front. A court decision in another case may spell trouble for their 'book search' technology. "In the recent case, Judge A. Howard Matz of United States District Court for the Central District of California, said Google's use of thumbnail-sized reproductions in its image search program violated the copyright of Perfect 10, a publisher of X-rated magazines and Web sites, because it undermined that company's ability to license those images for sale to mobile phone users ... 'I think it takes the wind out of their sails,' Jan Constantine, the general counsel for the Authors Guild, said of the Perfect 10 decision. The guild and the Association of American Publishers brought copyright infringement lawsuits against Google over its Book Search program."
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News: Big Ten Schools Recommit to Google Books Project 95 comments
CNN reports that twelve major universities around the country have agreed to have substantial portions of their libraries included in the Google Books project. Around ten million volumes are expected to be included in the project. Participating schools include the University of Chicago and the 11 universities in the Big Ten athletic conference: Illinois, Indiana, Iowa, Michigan, Michigan State, Minnesota, Northwestern, Ohio State, Penn State, Purdue and Wisconsin. "The committee said Google will scan and index materials 'in a manner consistent with copyright law.' Google generally makes available the full text of books in the public domain and limited portions of copyrighted books. Several other universities, including Harvard and California, already have signed up to let Google scan their libraries. "
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So what they're saying... (Score:2)
Sorry, couldn't resist.
Re:So what they're saying... (Score:3, Funny)
At just 10 cents a sentence, reading books on your mobile phone is going to be even more popular than getting the latest ringtones!
not sure this makes a difference for book search (Score:3, Insightful)
I don't see how a book search that only shows excerpts causes any economic harm. If anything, it will increase sales.
IANAL.
If I were Google, I would just drop perfect 10 from their search results entirely. I bet this would lose them more sales than thumbnails ever would.
Re:not sure this makes a difference for book searc (Score:2)
- Not exactly. Fair use criteria are defined out in USC Title 17, Chapter 1, Section 107 [cornell.edu]. There's no real hard and fast rule for how to apply those criteria. Courts tend to make judgement calls on a per-case basis. (Which is why lawyers make a fortune on this kind of litigation) Or, to put it another way, "None of these factors alone is sufficient to make a use fair or not fair - all of them must be considered and weighed. It
Re:not sure this makes a difference for book searc (Score:2)
Sounds like Perfect 10 was able to show economic harm (lost sales to cellphone users)
I don't really see how this can be the case unless we're talking about people who accessed images.google.com via their cellphone. Otherwise they would have been using a PC anyway and hence would have had access to the images on the Internet, and would not have formed part of the (really odd or desperate or stupid) market who want to look at tiny little low-res porno images on their cellphone for exorbitant prices.
I thoug
Re:not sure this makes a difference for book searc (Score:2, Informative)
I believe one of the criteria for fair use is that it doesn't cause economic harm.
The impact on the market is considered as a factor, but it is by no means the only factor, and other factors can easily outweigh it.
Consider a book review that uses a few quotes from the book to show that it is utterly factually incorrect. That review could clearly cause significant economic harm, and yet it is still fair use because the other factors [stanford.edu] outweigh the impact on the market.
Re:not sure this makes a difference for book searc (Score:4, Insightful)
Yeah sure, that would work. I'm sure Google going, "you mess with us, you're off the grid" is just the news that the ever-increasing number of people wary of Google's growing clout are just waiting for.
What next? Google removing Reporters without Borders from their index because they complained about their China policies?
Parent
Re:not sure this makes a difference for book searc (Score:2)
Considering how easy it is to prevent your site from being indexed, with this precedent I'm sure there are already people planning to "forget" to copy/paste "User-agent: Googlebot-Image Disallow: /" into a robots.txt file with the intention of suing Google over the included images.
Re:not sure this makes a difference for book searc (Score:4, Insightful)
I somehow doubt that the original conceivers of copyright law intended for most of the world's works to be locked up in 'corporate vaults' never to see the light of day again because the estimated potential profits off of those works were considered too small to be worth it. But publishers, especially bigger ones, only seem to care about the most profitable mass-market stuff. Why don't they team up with Google to sell electronic versions of those books that are OOP? They could surely make a killing ... but perhaps those companies tend to be too conservative and risk-averse.
Parent
Re:not sure this makes a difference for book searc (Score:2)
I somehow doubt that the original conceivers of copyright law intended for most of the world's works to be locked up in 'corporate vaults' never to see the light of day again
The publication rights of OOP books revert to the author. The OOP books aren't sitting in publishers' vaults; they are sitting in the hands of the authors, unexploited. If the authors want to resell the publication rights, they can do that. If they want to self-publish, they can do that. If they want to make the arrangement with
Re:not sure this makes a difference for book searc (Score:2)
The publication rights of OOP books revert to the author. The OOP books aren't sitting in publishers' vaults; they are sitting in the hands of the authors, unexploited.
Hvae you actually seen the contracts that authors typically have to sign with publishers?
Re:not sure this makes a difference for book searc (Score:2)
Quite honestly I'm just waiting for search engines to be outlawed all together.
Not Precedent for Google Books Search (Score:2, Insightful)
Both the Author's Guild [pcworld.com] and the American Association of Publishers [pcworld.com] lawsuits were filed in New York Federal Courts, while this was in California.
Re:Precedent for District Court Cases (Score:2, Informative)
In theory -- precedent for district courts doesn't exist except as it applies to the case at hand.
In reality, it can make a difference. A well reasoned, well thought out district court case which is on point will carry weight with other districts. For instance, the facts and legal ruling in Arkansas v. Jones has been cited and used 100's of times -- including by the Supreme Court, although it was never actually appealed. Kitzmiller v. Dover Area School District carries a similar type of weight.
Althoug
Overturned by wiser heads (Score:5, Interesting)
Whether the images were pirated or not is not Google's problem. They should inform Google (who would doubtless take down the images) and go after the pirates. Google has no way of knowing who in the slimy world of online porn is the copyright owner, who is licensed, who is using stuff under fair use, and who is a "pirate".
The judge made a mistake. Google's thumbnails were not the same thumbnails. They were a different expression of the same idea. Sleazy, but not illegal.
Re:Overturned by wiser heads (Score:2)
This would allow people to view a thumbnail while still requiring someone to visit a site to get the picture.
Or a norobots text or something like the broadcast flag embedded in the header of the image file.
Sure it's removable but then it's placing the blame squarely on the site modifying the image.
More worrying is the concept of Adsense being used to decide guilt upon the part of google. If
Re:Overturned by wiser heads (Score:2)
Turned around, does this mean we can go after the advertisers for hijacking our computers with adware and spyware?
Re:Overturned by wiser heads (Score:2)
~sigh~. In a perfect world, yes, we could.
Re:Overturned by wiser heads (Score:2)
Judges don't make mistakes. The law is as the judges decree. The Constitution, too. Just ask the USSC, the US Attorney General, and a whole bunch of other people.
Super-impose "Copyrighted" on the image? (Score:4, Interesting)
Re:Super-impose "Copyrighted" on the image? (Score:2)
robots.txt? (Score:3, Insightful)
Re:robots.txt? (Score:2)
Re:robots.txt? (Score:3, Informative)
It's in the disclaimer, which almost all books I know have somewhere on the first few pages. Relevnt part of it reads (approximately):
"No part of this publication may be reproduced, either in part or in full, either photographically, electronically, or by any other means, without express permission of the publisher."
There you have it, the dead-tree equivalent of 'robots.t
erm.. (Score:2)
Seems just an excuse to have a go at Google and get your name in the press.
Re:erm.. (Score:2)
Let me get this straight. (Score:2)
This is the way it's supposed to be:
1. Create content
2. Get indexed by Google
3. ???
4. Profit!!!
But these numbskulls put "sue" in step number three and basically will never get to step four. Sounds like it's time for a class-action suit from their members against this so called "guild".
Obligatory (Score:2)
Constantine ... Jan Constantine ... a$$hole.
Missing pieces of information (Score:5, Informative)
Perfect 10 blocked Google from indexing the site.
Third party copied the content and put it on their own site.
Google indexed that third parties site (not perfect 10's) compounding a existing copyright violation.
Whereas the book publishers can simply tell Google which books they don't want scanned and so they've given implicit permission by refusing to list those books.
Since fair use is a value judgement made by a judge interpreting a vague law, he sided with Perfect 10, but the same situation doesn't with the book publishers.
Re:Missing pieces of information (Score:2)
Do you actually own any books? Here's a typical line from the copyright page of one of mine:
Seems to me the publishers already have told Google which books they don't want scanned, in no uncertain terms.
Michael
Yet some publishers are happy (Score:2)
Yes, you bought it, tacked on terms are irrelevant. (IANAL)
"Seems to me the publishers already have told Google which books they don't want scanned"
* Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written with Google in mind.
* It fails the 'is this contract fair' test too, since the courts have repeatedly rules that you can reproduce portions of the books and it's fair use.
* The book publishers tolerate extracts in book r
Re:Yet some publishers are happy (Score:2)
Google isn't reproducing portions of the book, they are merely presenting portions of the book at any given time during a search. It is highly likely that the search engine itself could be considered a violation of copyright on this point alone.
* Yet that clause was put in those books prior to Google Book search existing, so it couldn't have been written wit
Not clear if.... (Score:2)
"Copyright awners are welcome to enforce their copyrights as they see fit."
If that was the case, MPAA would have successfully killed Betamax, it isn't, they don't have a free hand.
You should re-read the last sentence in my comment since it doesn't say what you think it does. The point being if we had to get permission for every use of copyrighted material (which is all material since copyright doesn't need to be declared) the world would grind to a halt, you wouldn
Re:Not clear if.... (Score:2)
As for the metamax comment you made, well, I'm not even sure why you made it. Betamax is technology and the courts ruled that the technology itself wasn't enough to prove infringement or even contributory infringement. The MPAA could still sue people who used betamax tapes to infrige copyrights, or not if t
Sounds like rationalization to me (Score:2)
Whereas the people can simply tell advertisers which phone numbers they don't want called and so they've given implicit permission by refusing to list those numbers.
Yes? No?
Personally, I fucking hate things that are Opt-Out. As one post pointed out, books already have their own version of robots.txt [slashdot.org]
Don't forget that "Fair Use" is an affirmative defen
GBS is promotion (Score:2)
See my comment above:
http://yro.slashdot.org/comments.pl?sid=178558&thr eshold=0&commentsort=0&mode=thread&pid=14804026#14 804075 [slashdot.org]
"Just because you like Google, doesn't mean you should invent rationalizations for their behavior."
See my comment above, I think Google are *wrong* in the Perfect 10 case and *right* in the Google Book Search case and that the two situations are not comparable for the reasons I outlined in
Google were told (Score:2)
http://www.chillingeffects.org/dmca512/notice.cgi? NoticeID=1328 [chillingeffects.org]
"Sent via: fax
Re: Customer Support DMCA Complaints
We have discovered a massive misappropriation of Perfect 10 images and images belonging to third parties on websites that appear in Google indexed listings. This situation is very serious as consumers can view essentially the entirety of the Perfect 10 library over and over without paying anything by utilizing Google search. Consume
I don't think that's important (Score:2)
Put it this way, is there a benefit to the copyright holder from Google indexing that data?
In the case of books, yes because it [arguably] promotion and aids in researching of books.
In the case of Perfect 10, no because the site being indexed isn't the copyright holder, its a pir
I don't really understand this... (Score:2)
You get text fragments of copyrighted content as part of textual searches.
You get reduced-size images as part of image searches.
If the former falls under fair use, and reduced images generally do as well, why wouldn't it this time?
Note to the authors... (Score:3, Insightful)
What google ought to do is *not* index these authors; these guys really are so goofy they don't understand what a boon this will be to them for people to get to their book, read a few sentences and then jump over to an online bookstore and buy it. Instead, they'll have to be content with a few sales here and there. Then they can go to their guild meetings and bitch about how the country is becoming illiterate.
Its like they're so greedy for a nickel here that they can't see the 10 dollars that is coming tomorrow if they're just patient.
Idiotic comparison (Score:2)
In the case of Perfect 10, Google was taking full size images and scaling them down to miniture size, which Perfect 10 argues was what they are doing by selling their images for use on mobile phones. First of all, Perfect 10's arguement is utter baloney. What is this sec
Intellectual Garbage (Score:2, Insightful)
Re:Still fair use (Score:4, Interesting)
There's no question that Google will benefit financially from Google Book Search. Google's program is commercial; it will make money selling ads on its search pages. There's no question that Google Book Search will infringe copyright. The question is whether Google's infringement is fair use. Part of the determination of whether copyright infringement is fair use goes to the potential of that infringement to cause economic harm to the copyright holder. If Google can index the complete text of a book without paying the author, the author can't sell that right to another party.
In the Perfect 10 case, Perfect 10 claimed Google's thumbnails interfere with its ability to sell its own thumbnails to cellphone companies. It's not clear to me that the Authors' Guild will be able to point to so specific an instance of economic harm. OTOH, the courts are generally reluctant to try to anticipate the market. Who's to say book search indexes that will pay authors for the right to include their texts won't spring up? I think the AG can probably make a compelling argument that Google's infringement chokes off the potential for authors to make money directly from selling this right, even if no one is putting money on the table right now. But that argument might not be compelling enough for things to go the authors' way.
Michael
Parent
Re:Still fair use (Score:2)
Google isn't putting entire books online in the same way. They are only telling you which books contain the terms your searching on and show some (hopefully) fair use sized examples.
The idea that someone is going to a porn site is so they can become sexually excited. I have no doubt that a thumbnail might cause some excite
Re:Still fair use (Score:2)
This is a lower court ruling that runs counter to higher court precedent in the same circuit on basically the same issue. The only reason Perfect 10 even won the lower court ruling was because they sell those thumbnails commercially.
Now it's up to a higher court to realize that if the creators of fair use c
Re:Still fair use (Score:2)
Google is copying the entire book. It has to, in order to make a complete index. Book Search wouldn't work if Google only copied a chapter.
I see a lot of people, especially here on /., hung up on the issue that Google's not displaying the whole book. I don't think that's such a big deal. Google still has to make use of the entire work, or its book search won't work.
A reasonable analogy might be a book review. A reviewer can quote excerpts
Re:Still fair use (Score:2)
>books they are indexing and as it's fair use they don't even need to ask anyone. I'm not sure how this
>case affects their book effort?
Lets see, so according to you, it would be OK for me to connect to every p2p network I find, dowload and keep a copy of everything for indexing and then making all those copies searchable and linking to were I find them and also provide small snipets from the files, f
Re:Still fair use (Score:2)
So? Why would they matter? Or are you saying that if google start to do it with other media they are suddenly in the wrong? Besides, I might just stick with music or movies.
>Secondly google are working in close company with some very esteemed universities on this project
So if you work with a University it is suddenly less copyright infringement?
>At no time are google going to give people access to books they don't own the copyright to, so your
>comparison is innaprop
Re:Don't be distracted (Score:2)
Re:Google's twin evils - Copyright and Privacy (Score:2)
Google can't "publish" anything that isn't already freely and openly available on the web.