Google Responds to Authors Guild Lawsuit 383
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.'"
Re:This is no different... (Score:4, Informative)
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.
Re:This is no different... (Score:3, Informative)
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.
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?
What About MP3.com (Score:2, Informative)
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 this is where Google might run into some serious problems.
If MP3.com could not do this years ago with CDs, why should Google be allowed to do this now with books?
I'm not saying what is right or wrong. These are just examples of how copyright is hurting the public interest rather than helping...as is the purpose of copyrights.
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: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.
Comment removed (Score:5, Informative)
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.
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.
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, they were supplying a copy of music that wasn't taken from your purchased copy.
Right, but even the initial internal copy, I think, was ruled to not fall within the rights of fair use. (though the external copies were also a problem too)
Especially regarding the arguments, I think more focus was on the total number of CD's ripped, not on the total number of mp3's sent to individuals.
Re:Copyright Law (Score:1, Informative)
In general, as long as your use of the material is different from the copyright owner's, you are free to use it. Making a parody, making a sculpture from AOL CDs, etc., are fair use because the new work is different from the original.
You can take excerpts of otherwise restricted material, as long as the excerpt is small in relation to the overall original.
Whether someone qualifies as a "library" or an "archive" or not depends on their use of the material. Libraries and archives get a pass to use things because they serve the public good, rather than their own. If Google's archive depresses sales of the works in question, they
are guilty of copyright infringement.
Reviewers and news reporters (and bloggers) can use restricted material with more latitude than others.
You have more latitude if you are using the work non-commercially, less if you use it commercially.
You can *always* use a work to compare its copyright status with other works. In other words, you can't claim copyright on something similar to other stuff and expect no challenges.
You have more latitude if your use of the work isn't a "spoiler" for the original. For instance, publishing the most interesting chapter of a Harry Potter book would probably infringe, but publishing the table of contents for something hardly ever would.
Finally, if your use of the work precludes the original author from making a similar use of it, you probably are out of bounds. Those cases are rare, like making a movie out of a book or a computer game from a movie. Usually there is another flaw in the use. The main thing here is you can't be in direct competition with the copyright holder.
But each copyright case is considered unique, which can make case law difficult to use in arguing a case or knowing how a judge will decide. There are a few important cases, but mostly it's the statutes and common law.
Mod parent up (Score:3, Informative)
Re:Copyright Law (Score:3, Informative)
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, was submitted to Google by the publisher. Under those circumstances, people would only be allowed to see a maximum of 20 percent of the book, and a percentage of random pages are blocked completely.
And this link (PDF) [policybandwidth.com] in the blog response explains how Google's program is probably going to be allowed to proceed.
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.
Re:Copyright Law (Score:1, Informative)
FWIW, I think that what Google is doing is fair use, but unfortunately it will lose in court or be forced to put up only public domain works.
Re:This is no different... (Score:3, Informative)
Re:This is what I want to know (Score:1, Informative)
http://print.google.com/googleprint/help.html [google.com]
6. I'm already logged in. Why are you telling me the page is unavailable?
As part of our efforts to protect a book's copyright, a set of pages in every in-copyright book will be unavailable to all users.
Re:my.mp3.com (Score:2, Informative)
Re:Google-Watch wrote to The Authors Guild in July (Score:2, Informative)
You make me sick, acting all high and mighty when you are really being selfish!
Re:Copyright Law (Score:3, Informative)
Second, you do not have to do anything to own copyright on something you create. From the moment you create an original work, you own the copyright for that work. If you do not register your copyright, it might be harder to defend it, but you still own that copyright. So, publishers do not agree to provide copies for fair use -- they are forced to do so in much the same way that you are forced to pay taxes or not kill your neighbor.
On the last point, however, we have a common understanding. If it is ruled that Google's use is fair (which is the crux of the issue), then Google is under no obligation to allow for opt-outs. It would be done as a courtesy to keep the peace, but they wouldn't have to do it. On the other hand, it may help their case -- I am not quite sure how copyright works, but in the case of trademarks, you lose your trademark if you do not actively defend it. By providing a simple way to protect one's copyright, Google may be creating something of an escape clause for themselves.
Re:Copyright Law (Score:3, Informative)
You are also more limited in the damages that you can sue for under copyright law. Use of an unregistered copyright can be pursued for (IIRC) actual damages only, whereas a registered copyright can be pursued for treble damages.
Fair use (Score:3, Informative)
(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.
Re:my.mp3.com (Score:1, Informative)
mp3.com: Put CD in drive, transmit to third party enough metadata to identify the CD, 3rd party gives you MP3s from their own CDs based on said metadata
Re:Opt-In makes sense (Score:2, Informative)
2) Google isn't going to distribute even these excerpts. They will only show it to you if you search for it.
What Google is doing is akin to a library having a limit on how much time you can spend reading a part of a single book before you have to borrow it. They (the theoretical library) aren't going to allow you to use the copy machine or take a book out without signing it out (buying it).