Though copyright law predates the Internet, case law has been established regarding the indexing of copyrighted material, and it has come out in favor of the indexer. Publishers who have issues with Google’s Print for Libraries project may end up with little more than hurt feelings.
Late in 2004, Google made a surprise announcement about an incredibly ambitious project to digitize and index millions of published works, with the aid of Stanford University, the University of Michigan, Harvard University, Oxford University, and the New York Public Library. The project was/is expected to cost upwards of $200 million over at least 10 years.
The entire text of books considered to be public domain and out of copyright will be scanned and made available online. For copyrighted material, the books will be scanned, and snippets will be made available structured around search terms with links to where the book can be checked out or purchased.
The publishing community, who had already signed up for Google Print for Publishers where snippets of copyrighted material were indexed for preview purposes, felt somewhat betrayed by Google as the Library project appeared to be sneaked in along side the Publisher program.
Two major publishers, the Association of American University Presses (AAUP) and the Association of Learned and Professional Society Publishers (ALPSP), sent letters to Google asking them to stop the project as digitizing entire works of literature was a fundamental violation of copyright and would, in their opinion, hurt publishers and writers financially.
“News of Google Print for Libraries came as a complete surprise. It had not been mentioned by Google representatives during any of the discussions they were having with our members, and Google’s subsequent explanations of Google Print for Libraries have only increased that confusion and transformed it into mounting alarm and concern at a plan that appears to involve systematic infringement of copyright on a massive scale,” read a letter written by Peter Givler on behalf of AAUP.
Technically that’s correct, Google has not received explicit permission or paid to reproduce the material. Instead, the search engine has gone through the 5 selected libraries which have given permission to digitize all or some of their collections. Though Google paused the project in August to negotiate with publishers, scanning is slated to continue this autumn with publishers having the option to de-list themselves from the project.
Google, as well as critics of the publisher groups, has argued that the Library project will only help to increase exposure and book sales. Publishers say that is yet to be seen, that no one has the right to copy entire texts without permission, that the implications of allowing Google to do so would pave the way for others to do the same, that they’re not convinced the system is secure, and that Google+library+search/2100-1032_3-5752085.html”>privacy issues (involving cookies and the Patriot Act) remain unresolved.
But all of these objections from publishers may yield little in court because of case law and Fair Use guidelines.
As this copyright analysis from Jonathan Band goes to great lengths to explain, ArribaSoft v. Kelly is one precedent ruling Google’s legal team could use in its favor. In this case, image search engine ArribaSoft was cleared of accusations brought about in a lawsuit by a photographer who claimed indexing his copyrighted images was a violation of copyright law. The ruling that ArribaSoft was protected under four separate provisions of Fair Use was upheld in two separate courts.
Here are some of the key rulings in that case:
1. 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.
Though Google would profit from contextual advertising, the digitizing of the texts is enormously expensive for Google, and appears to serve the public good.
2. Arriba’s use of Kelly’s thumbnail images “do not supplant the need for the originals.”
As only snippets of copyrighted material are used, the need for the original is not supplanted in Google’s case either.
3. although Arriba did copy each of Kelly’s images as a whole, it was reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image
and decide whether to pursue more information about the image or the originating web site. If Arriba copied only part of the image, it would be more difficult to identify it, thereby reducing the usefulness and effectiveness of the visual search engine.
A copy of the whole is necessary to be able to search the contents effectively.
4. The search engine would guide users to Kelly’s web site rather than away from it.
Snippets, if attractive to the needs of the searcher, would drive traffic to a potential purchase, creating a huge benefit for publishers and authors.
Chances are Google’s legal team knew what it was getting into before it began, knowing the case law to support such an action. The choice to opt out of the program showed some bend on Google’s part, an attempt to maintain a relationship, when in legal reality, the search company, in the US at least, doesn’t have to give up much.
