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Google Responds to Authors Guild Lawsuit 383

Posted by ScuttleMonkey
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 Responds to Authors Guild Lawsuit

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  • by gr0kCalvin (750832) on Wednesday September 21, 2005 @04:25PM (#13616593)
    No different that cataloging the internet...which they also did without the copyright owners consent.
  • new product (Score:5, Funny)

    by TedCheshireAcad (311748) <ted@NOspaM.fc.rit.edu> on Wednesday September 21, 2005 @04:26PM (#13616602) Homepage
    I'm just waiting for Google to release Suegle.

    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)

    by msh104 (620136) on Wednesday September 21, 2005 @04:27PM (#13616608)
    3rd google article in two days...
    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.
    • by Anonymous Coward
      > amazon has been doing the same thing too for quite some time.

      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.
  • by chris_eineke (634570) on Wednesday September 21, 2005 @04:27PM (#13616609) Homepage Journal
    If slashdot can make money off posting dupes, why can't dupes make money off posting on slashdot? ;}
  • my.mp3.com (Score:5, Interesting)

    by interiot (50685) on Wednesday September 21, 2005 @04:27PM (#13616612) Homepage
    Does this relate to the my.mp3.com case at all?

    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)

      by aaronl (43811)
      They are copying the text into a database, and running a query against the database. The result is that they do not disperse any copies to users. They don't create another copy when you perform a search against that database.

      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)

        by interiot (50685)
        Okay, time to dig into the case more I guess. UMG RECORDINGS, INC. v. MP3.COM, INC [uh.edu].

        It's language like this in the opinion that makes me think the problem was more with internal copying than with external copying:

        To make good on this offer, defendant purchased tens of thousands of popular CDs in which plaintiffs held the copyrights, and, without authorization, copied their recordings onto its computer servers so as to be able to replay the [*3] recordings for its subscribers.

        In the case of mp3.com,

        • However, Google isn't retransmitting the content, nor are they storing someone else's copy of the content. They are creating a copy of their own content in their database, or aiding a party to copy the content that party owns into the 3rd party's database. Then they are setting up so that they can transmit a search query to that database. In the case of the library data, they aren't in possession of the content.
    • I doubt this will really go like that. A rather key difference IMO is that Google is only showing small excerpts of text, not the entire work.
      • That's what Google is doing externally. Internally, is it possible that the courts will see the initial act of copying the books into their computers as the same as running thousands of books through Google's photocopiers (which would be obviously illegal, if done to books in their entirety).
        • That's what Google is doing externally. Internally, is it possible that the courts will see the initial act of copying the books into their computers as the same as running thousands of books through Google's photocopiers (which would be obviously illegal, if done to books in their entirety).

          Not necessarily. In fact, they probably have to do the equivalent - scan the entire text of each book into their database. Otherwise they could not do full-text searches on the content of the books.

          The difference here
    • Re:my.mp3.com (Score:4, Interesting)

      by cpt kangarooski (3773) on Wednesday September 21, 2005 @05:09PM (#13616944) Homepage
      Yes. Reproduction even without later distribution of the unlawfully made copies is an infringement.

      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).
  • They will get more exposure of their books and the service probably lift their sales, cant their greedy minds understand it?.
    • It's not necessarily a reaction based on greed, I suspect that it is more one of fear. It takes the control out of their hands and into the hands of a third party, imagine if a google started releasing its own demos of Sierra's games. How about if google started releasing its own trailers for Pixar's movies? Personally, I think its a brillant idea and a good move but I still do understand the view of the other side.
  • by op12 (830015) on Wednesday September 21, 2005 @04:31PM (#13616642) Homepage
    The article Google's response points to a case that they are claiming set the precedent for search engine use of copyrighted material, including for commercial purposes:

    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.
  • by TWX (665546) on Wednesday September 21, 2005 @04:31PM (#13616647)
    This is just another indication of stupid industry groups. It's not limited to commercial media, folks.

    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.
    • From TFA..especially since any copyright holder can exclude their books from the program

      n 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.

      If I were Google, I would make it "Opt-In". Maybe even charge those guys. How's that for poetic justice.

      • It would be poetic justice, but unfortunately, I doubt these groups would opt-in, be it for free or otherwise. The only way to get this off the ground is to already have a massive database of content indexed.

        With only opt-in, you would probably end up with only a small number of authors. Specifically, the ones that are contracted with small publishers, or that just publish online through ebooks. It would be like what mp3.com, and similar, looked like: no big names, but sometimes good content that you'd
    • in part perhaps it's fair use but google indexes the books in full.

      that means google makes full copies of the books into their own database for commercial use and as the excerpts are shown around the search results what does it take to read the entire book by crafting search queries? not much I'd think.

      if it's ok for google to copy the books why is not ok for _everyone_ else to go to the library and just plain copy the books? or request a copy through mail or whatever?

      google says through a proxy that **Unde
      • Finding the full text of the book using that sort of chaining would be the simplest thing in the world for Google to disallow.

        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.
  • by Anonymous Coward on Wednesday September 21, 2005 @04:35PM (#13616677)
    This is something that, in my opinion, should clearly be opt-in, not opt-out. Google makes you jump through some hoops to stop them from slurping your material. Why is the burden placed on the copyright holder? If Google wants the information, Google should do the work. Of course, the minor fiasco with opt-in with Google Video proves that Google isn't up to the task. They recognized their failing and instead of trying to correct it, they decided to reverse the direction to the disadvantage of copyright holders. I know you want to automate everything Google, but sometimes hiring a staff to do real work is necessary.

    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."
    • by Wesley Felter (138342) <wesley@felter.org> on Wednesday September 21, 2005 @04:43PM (#13616736) Homepage
      If a book is out of print it is unlikely that the publisher will opt-in. In particular, if the publisher is out of business there may be no way to opt-in at all, ensuring that those works will be lost forever.

      And as a practical matter, Amazon/A9 already took care of indexing the books whose publishers are willing to opt-in.
    • Opt-In makes sense (Score:5, Insightful)

      by Anonymous Coward on Wednesday September 21, 2005 @04:57PM (#13616833)

      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.

    • I can see your point, but I think the product resulting from opt-ins would be dramatically inferior to opt-outs. I'm afraid that we'd end up with the text equivalent of Itunes (which is completely unsatisfactory if you like 20th century music, old jazz, classical or world music). I agree that opt-in would be more comfortable to authors, but I think the social benefit from opt-out justifies that route. Especially in light of the proposed model which limits its' utility to being a research tool.
    • If Google wants the information, Google should do the work.

      Google _is_ doing the work. Hello! In the article yesterday, one publisher complained that publishers don't even necessarily know what books they've published, but Google is going through large collections, finding and notifying publishers, and scanning millions of books. Tell me again who's not doing the work.
  • In order to have an opinion on this whole copyright thing between google and authors/publishers I would like to know the following. How is google going to keep people/organizations from creating or otherwise attaining large server farms or some method to fool googles methods of detecting unique visitors. I mean if such a server farm or something like it can be created/obtained, couldn't one theroretically compile whole texts. In essense getting digital copies of whole libraries? If so, publishers and au
    • How is google going to keep people/organizations from creating or otherwise attaining large server farms or some method to fool googles methods of detecting unique visitors. I mean if such a server farm or something like it can be created/obtained, couldn't one theroretically compile whole texts.

      Sure they could. All they have to do is submit multiple search strings with the text of the book they want to replicate. In order to do this they would have to very nearly replicate a good percentage of the work in
  • no shit (Score:5, Interesting)

    by lucky130 (267588) on Wednesday September 21, 2005 @04:40PM (#13616707)
    Who cares if it falls under those specific examples of "fair use."

    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)

      by garcia (6573)
      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;


      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)

      by danormsby (529805) on Wednesday September 21, 2005 @04:50PM (#13616799) Homepage
      > (3) by not reproducing a substantial portion of the work

      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.

  • to be copied into googles database(which is what they really mean with 'indexing) you can tell them that you don't want your book in it. basically googles stance is that they can do whatever they want with the librarys books unless you specificially tell them to not do it - which is a bit strange, like stealing candy and then saying there wasnt a specific sign saying that you can't steal candy when someone says wtf you're doing...

    oh and if authors don't do anything?

    ****
    5. What happens if I do nothing?

    If you
    • by 99BottlesOfBeerInMyF (813746) on Wednesday September 21, 2005 @05:10PM (#13616960)

      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.

  • What About MP3.com (Score:2, Informative)

    by maxxdogg (138149)
    Isn't this exactly what MP3.com did years ago with CDs. Behind the scenes they copied every CD they could get there hands on. Then they were able to copy these mp3's into the accounts of users that actually had the physical cd.
    When they were sued out of existence, they basically lost not because they were giving users mp3's...but because they had created copies of copyright works into their database.
    Just the act of making the original copy into their own database is where they broke the copyright. I think t
  • by Sheetrock (152993) on Wednesday September 21, 2005 @04:44PM (#13616743) Homepage Journal
    Google is attempting to provide an experience which enhances the ability to search within books -- thereby increasing one's ability to discover and purchase books. It is a subset of the functionality that you would get by purchasing or borrowing from a library the entire book (or even browsing one in a bookstore) because the service limits the number of pages you can fetch and intentionally leaves a number of pages out.

    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.

  • by bcrowell (177657) on Wednesday September 21, 2005 @04:46PM (#13616768) Homepage
    Google Print is really two separate programs: an opt-in program for publishers who want to get publicity for their books, and an opt-our program where google is digitizing books from libraries. I'm participating in the opt-in program as a publisher, and so far it's pretty useless. The only way you would find my books is if you do a search via print.google.com, rather than plain old google.com. For example, this search [google.com] will turn up one of my books, but a similar search on google.com will only turn up stuff that google would have indexed anyway, even without the Google Print service. (My situation is a little unusual, because my books are free online in digital form. If I was a normal, non-free-information publisher, the google print search would be the only method that would turn up anything.) If you try this search, you'll see that it will give you options for buying the printed book, which is the purpose of the program, from the publisher's point of view; but the problem is that people don't actually search on print.google.com.

    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.

  • Here's an interesting light that i don't think anyone has bothered addressing. Yes we know the authors might or might not be up in arms about this, but what about the teachers? IF the service really works as they say, then students would be able to quickly search out phrases or texts from books, something a lot of current "educators" use as homework questions since it's pretty impossible to know where they are unless you've read the book. But hey, now we have google? Pretty soon you'll see all schools b
  • fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself

    After extensive undermining of copyright law it was determined that there are no underlying principles anymore.
  • Author's Guild (Score:5, Interesting)

    by Anonymous Coward on Wednesday September 21, 2005 @05:01PM (#13616877)
    The Author's Guild also was the organization that attacked Amazon [guardian.co.uk] for selling used books. (Previously reported by /. [slashdot.org].)

    I know a couple of best-selling authors personally, and none of them have a high opinion of the Author's Guild.
  • I would agree with Google and say that they have an open and shut case, but I thought that about mp3.com, too. Remember in that case, even though it is 100% legal to format shift, and that is what mp3.com was doing (you had to have access to a legit CD before mp3.com would give you access to the same songs in mp3 format), they got the crap beat out of them when it actually went to trial.

    Our courts are behind the times and are consistently siding with the entrenched industry, it seems.

    Anyway, I seem to reme
  • From a Librarian (Score:5, Interesting)

    by jfrumkin (97854) on Wednesday September 21, 2005 @05:06PM (#13616915) Homepage
    IANAL (I am not a lawyer), but IAAL (I am a Librarian). While I personally agree that there *should* be the ability to digitize these collections and make them searchable, I think Google's in a whole heck of a mess here.

    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.
  • by DeadVulcan (182139) <{dead.vulcan} {at} {pobox.com}> on Wednesday September 21, 2005 @05:25PM (#13617094)

    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.

    • by zalas (682627) on Wednesday September 21, 2005 @06:00PM (#13617360) Homepage
      Coincidentally, I was trying to piece together some text from a website that had been taken offline. It was still in Google's records, since I could search for it, but there was not "Cache" option I could click on. What I essentially did was try to remember pieces from the original text, and search using Google to get it to highlight it, and then searching a little bit ahead and back with the other words it pulled up. It doesn't work too well, since sometimes it refuses to go forward or back; your search term would simply be the first entry or the last entry in the excerpt. I had to come up with a lot of "seed" phrases in order to get the whole thing, which was only around 20 lines of text. Theoretically, this would mean that the bot would have to have a dictionary of "seed" words or phrases to start with, and then once it gets all its sequences, it would then need to piece them together like one would piece together the amino acid sequence of a protein from subpeptides.
  • by Everyman (197621) on Wednesday September 21, 2005 @05:55PM (#13617326) Homepage
    I wrote to administrators, and to each Regent at the University of Michigan, trying to get them to look at Section 108 of the Copyright Act, which specifies the limits of library copying as an instance of fair use. I believe that Section 108 prohibits U.Michigan from what they are allowing Google to do with their books.

    I also wrote to the Authors Guild, expressing my frustration that U.Michigan ignored me. A copy of that letter is here [google-watch.org].

    Google is a weed growing in the copyright garden. I was thinking that Section 108 might be used to trim back the weed. The Authors Guild is wisely hoping to pull it out by the roots. If that doesn't work, maybe they can trim it back later.

    I'm quite happy with The Author's Guild suit. It looks to me like they know what they're doing. Maybe five years down the road, when the Supremes establish that opt-in also applies to websites, then we'll be able to force robots.txt into an opt-in mode instead of the present opt-out mode. That will fragment the monopoly of the big search engines, and help to give the web back to the webmasters.

    If Google could show snippets from books without first copying the entire book, and if they did this without any commercial interest or intent, then I think they might have a fair-use argument. But there are some hurdles before they can get to that argument.

    Many Google acolytes like to point out that Google already grabs much of the web in its entirety, which is copyrighted by default. That's true. But that doesn't mean it's legal. All it means is that search engines started doing this before webmasters got organized into associations (they still aren't organized), and there was no one to challenge the engines.

    Now if webmasters had been around as long as authors, and were organized to protect their interests, the engines would have never gotten this far with their illegal crawling for profit.
    • by joelsanda (619660) on Wednesday September 21, 2005 @06:54PM (#13617702) Homepage

      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.

  • Fair use (Score:3, Informative)

    by shimmin (469139) on Wednesday September 21, 2005 @07:15PM (#13617843) Journal
    It's common in evaluating fair use defenses these days to apply the "four purposes" test:

    (1) Effect on the market value of the work. Google can probably effectively argue that their use of the works does not adversely affect their sales. Only one sale was lost (selling the book to Google, since they borrowed and copied it rather than copying books they already owned copies of), and if anything, having the work indexed will increase the number of people exposed to the work's existence.

    (2) Amount and substantiability of the work used. Google could get in trouble here, because even if they only reveal there copy a few words at a time, they copied the whole thing, and are redistributing the whole thing, if a few words at a time. There was nothing in the work that Google did not copy.

    (3) Nature of the copyrighted work. The more creative a work, the smaller the range of uses considered fair use. A mere database is inelligible for copyright, and a reference work that conveys primarily factual information is easier to use fairly than a work of creative fiction. This could get hairy. One the one hand, many of the works Google proposes to copy are purely creative works. On the other, they are using them not for their creative content, but purely as data. If they can convince the court that because they have used the works as a database, and not as creative works, they have used them fairly, they have a chance. If the court sees the works principally as creative works though, this is a strike against Google.

    (4) Nature of the use. Google is using the works commercially, even if they aren't getting paid. This is a strike against Google, though probably not an overriding one. However, to really win on this point, they need to make the case that putting all these books together in a big database is "transformative," and this is a hard point for them to make. While the books in the database can be used in a fashion they couldn't be used while not in the database, their appearance in that database is not transformative insofar as seeing the quote from the database adds little context to the work. It is not transformative in the sense that parody, criticism, scholarly research, etc., are transformative.

    In my opinion, Google has a good fair use defense only if they can convince the court to distinguish the content of the works as creative works from the content as data, and then say they copied only the data, without infringing the creative work. It is not at all certain to me that the court would agree with such an interpretation of the law. If this makes it to trial, it is my opinion that Google faces an uphill battle.
  • by HuguesT (84078) on Thursday September 22, 2005 @04:59AM (#13619991)
    OK, what is the guild complaining about ?

    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.
    • You appear to be confusing Google Print and the Google Library project.

      The work you mention is in Google Print only because the publisher asked for it to be. Part of the terms are

      In addition, you can choose how much of your book a user will be able to view over a 30 day period, from 20% of your content up to 100%. Portions of your book will be available to all interested users, but those users wanting to browse additional pages must sign in with their Google Account to view the full pages. (They will stil

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