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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.
Google The Courts
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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[+] 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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  • ... is that they are planning to sell thumbnail sized reproductions of book covers or their contents to mobile users? What a promising concept!

    Sorry, couldn't resist.
    • No, they're planning to sell individual sentences, just like Google Book Search displays.

      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)

    by j0nb0y (107699) <jonboy300&yahoo,com> on Sunday February 26 2006, @08:34AM (#14803681) Homepage
    Sounds like Perfect 10 was able to show economic harm (lost sales to cellphone users). I believe one of the criteria for fair use is that it doesn't cause economic harm.

    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.
    • I believe one of the criteria for fair use is that it doesn't cause economic harm.
       - 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

    • 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

    • Re:not sure this makes a difference for book searc (Score:2, Informative)

      by Anonymous Coward

      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

    • Re:not sure this makes a difference for book searc (Score:4, Insightful)

      by Jivha (842251) on Sunday February 26 2006, @11:25AM (#14804138)
      "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."

      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:4, Insightful)

        by dustmite (667870) on Sunday February 26 2006, @09:31AM (#14803798)

        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 ]

        • 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'

          • 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 publishe

      • Yea, you would think. Then again you would think that indexing news with a few lines of the text and a link to the site would be good for the news site. Seems many of them disagree. So much for logic.

        Quite honestly I'm just waiting for search engines
  • This Lawsuit does not set a strong precedent for the two Google Book lawsuits. At least that's what I think, I encourage people who know differently to tell me I'm wrong.

    Both the Author's Guild [pcworld.com] and the American Association of Publishers [pcworld.com] lawsuits were fi

    • 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

  • Overturned by wiser heads (Score:5, Interesting)

    by lheal (86013) <<moc.oohay> <ta> <9991laehl>> on Sunday February 26 2006, @08:51AM (#14803721) Homepage Journal
    A little googling gave me some SEO site's take [searchviews.com]:
    The issue is that Google was indexing photos owned by Perfect 10 but made available on pirate sites that had stolen and profited from the prurient material. Another point was that some of the rip-off artists were Google AdSense users, and therefore Google had actually made money, in a roundabout way, from the infringement of Perfect 10's copyrights. The judge also determined that Google's mobile image search was cutting into Perfect 10's business, since the mobile "thumbnail images are essentially the same size and of the same quality as the reduced-size images that (Perfect 10) licenses to Fonestarz," a UK mobile firm, for a subscription-based cell phone service.

    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.

    • I was going to suggest that google might be in a different situation if they applied a logo to each thumbnail.
      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 somethi
      • More worrying is the concept of Adsense being used to decide guilt upon the part of google. If a torrent search engiine site has google ads does that mean google gets hit with a lawsuit for illegal torrents?

        Turned around, does this mean we can go after t

    • The judge made a mistake.

      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)

    by ponchoboy (736747) on Sunday February 26 2006, @08:55AM (#14803729)
    Why doesn't Google just super-impose "Copyrighted" on the thumbnail images? That way people really wouldn't want to use them for cell phones since they are distorted.

  • robots.txt? (Score:3, Insightful)

    by Spazmania (174582) on Sunday February 26 2006, @09:16AM (#14803761) Homepage
    Can't all of these web sites exclude their material from Google by using the industry standard robots.txt file? I know that doesn't apply to the book search, but it certainly applies to Perfect 10's web sites. If so, why is there any legal challenge to Google's web site search functions?
    • yes, yes, slashdot and all, but please RTFA. The pictures were on a different website. Repeat after me, one cannot set a robots.txt on an external website.

    • Re:robots.txt? (Score:3, Informative)

      by mikiN (75494)
      Book publishers have the means to exclude electronic searching as well, and have used this for as long as I know. (does that show my age?)
      It's in the disclaimer, which almost all books I know have somewhere on the first few pages. Relevnt part of it reads
  • I don;t think many people want 2 inch porn pictures. Something about being in public and a three pixel tall vagina doesn't seem very.. masturbation friendly..

    Seems just an excuse to have a go at Google and get your name in the press.
  • If any other content owner manages to get indexed by Google they break out the champagne, but some author's association sue for the same kind of free marketing? Executive summary: Idiots.

    This is the way it's supposed to be:
    1. Create content
    2. Get index

  • Constantine ... Jan Constantine ... a$$hole.

  • Missing pieces of information (Score:5, Informative)

    by NigelJohnstone (242811) on Sunday February 26 2006, @09:51AM (#14803839)
    There's missing a key point:

    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.

    • 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.

      Do you actually own any books? Here's a typical line from the copyright page of one of mine:

      • "Do you actually own any books?"

        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 existin
        • * 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.

          Google isn't reproducing portions of the book, they are merely presenting portions of the book at any giv
          • ...you are agreeing or disagreeing with me.

            "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 sente
            • You DO have to get permission for every use of copyrighted material UNLESS it falls under the protection of fair use, which has a very limited scope ad doesn't cover what many slashbots think it covers.

              As for the metamax comment you made, well, I'm not eve

    • 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.
      Whereas the people can simply tell advertisers which phone numbers they don't want called and so
      • The premium content is behind a login and a search suggests it is blocked, only public and tour pages are shown in the search results. So I don't think its important how they blocked Google indexing that content, only that they did.

        Put it this way, is ther
  • By far most material Google indexes and shows previews of is copyrighted.

    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

  • Note to the authors... (Score:3, Insightful)

    by tkrotchko (124118) * on Sunday February 26 2006, @11:53AM (#14804240) Homepage
    With apologies to Oscar Wilde, "The only thing worse than being indexed by Google is NOT being indexed by google".

    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.
  • Are all authors this stupid, or just the ones they hire to be their spokesman? If he's straining for some court precedent that would help their case, there is little point in just trying to grab every case just because in involves Google.

    In the case of Pe

  • Intellectual Garbage (Score:2, Insightful)

    by xeer0 (42098)
    The bottom line is that the United States is going to go down the tubes squabbling over "Intellectual Garbage" while other countries prosper because they are unencumbered by this foolishness and enjoy the benefits of more open information sharing.

    • Re:Still fair use (Score:4, Interesting)

      by mcubed (556032) on Sunday February 26 2006, @10:41AM (#14803985) Homepage
      It affects the book search case because it sets a precedent for showing that if Google is benefitting financially from its efforts, and those efforts have the potential to cause economic harm to the copyright holder, then Google can be liable.

      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 ]
      • A key difference here being that a thumbnail contains 100% of the information even though the size is reduced (personally i think its clear that a thumbnail has reduced value (See Below)).

        Google isn't putting entire books online in the same way. They are o
        • True enough, but more than that, Google making a profit does not negate fair use. In fact, this is probably the least significant issue where fair use is concerned. A lot of fair use is commercial.

          This is a lower court ruling that runs counter to highe

        • Google isn't putting entire books online in the same way.

          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

    • >In my eyes googles book indexing service is still fair use as it's not abusing the copyright of the
      >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
        • > firstly you are mixing media

          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 w
    • The AC is right, the debate shouldn't be wether Google violated fair use or not, the debate should be: how can we get rid of this beast called "copyrights" that doesn't belong in the information age.
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