Google Responds to Authors Guild Lawsuit

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.'"

new product

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!

The daily insight

If slashdot can make money off posting dupes, why can't dupes make money off posting on slashdot? ;}

Re:The daily insight

If slashdot can make money off posting dupes, why can't dupes make money off posting on slashdot? ;}

That's what happens on slashdot.ru
 

my.mp3.com

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)?

From the article linked from the blog

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.

Industry groups are stupid

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.

no shit

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.

We gotta stop this approach now.

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.

two separate programs

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.

Author's Guild

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.

From a Librarian

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.

Could a bot retrieve a whole work?

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?

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.

Re:Copyright Law

The use of from...to implies it's a range. So while it's possible that it's similar to saying "integers from 1 to 2", it could also be from 1 to 100 and they're glossing over the 2 to 99 part.
 

Re:Copyright Law

TFA says that in-copyright works will only have snippets of text associated with search terms, so only a small fraction of a book (or a small fraction of a few pages) will be shown by Google. This is similar to a snippet for a review.

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?

Re:Copyright Law

I think you, or at least you post is confusing 2 issues.

See this page:
http://print.google.com/googleprint/screenshots.ht ml#excerp [google.com]

[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.)

Re:Copyright Law

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.

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:Copyright Law

Exactly. The use of copyright is a benefit, and a priviledge. The benefit is that an individual can hold the rights to copying the works and being paid for the copies. The priviledge is that it's entirely a legal standing, and can change or be revoked through legal means.

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.

Re:Copyright Law

Until you've used the Google tool, please don't post on its merits or dangers. From what I've seen using the tool it really looks to be useful for researchers and students. Claiming this is stealing from authors it completely wrong headed. If anything this is a giant electronic library card catalog tool.

Corporate America of course won't be happy until you pay a per-word usage fee for reading a library book.

Re:Copyright Law

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.

The Internet is free

But books are not.

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.

Re:This is no different...

Yes, but Google also caches [google.com] the pages.

Opt-In doesn't work for out-of-print books

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

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.

Re:so if you dont' want your book..

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.