Overview: In late 2004, Google announced an ambitious plan to digitally scan the full libraries of Harvard, Stanford, the University of Michigan, Oxford, and The New Public Library so that they may be searched through Google's search engine. Google advertised this project as a way to make works more accessible to prospective purchasers, as well as to provide access to works that are out-of-print. The move was protested by various publishers and authors, who viewed this as copyright infringement on an unprecedented scale. Today, I want us to examine the copyright implications of the Google Book Search as to whether or not this ambitious project is legally feasible.

I. Background information about US Copyright law may be found here: http://www.copyright.gov/circs/circ1.html

• The "fair use" exception is discussed at: http://www.copyright.gov/fls/fl102.html
• The "fair use" exception is codified in 17 USC § 107, and may be found here: http://www.copyright.gov/title17/92chap1.html#107

II. Background Information about Google Book Search

• Visit Google Book Search online at http://books.google.com/books
  • Explore the site for a couple of books of your choice.
  • What did you find? What did you expect to find?
• Review the background materials at http://books.google.com/intl/en/googlebooks/about.html
• Look through the legal information on Google’s site at http://books.google.com/googlebooks/newsviews/legal.html

III. Authors’ Guild responses to Google’s Book Project

• http://www.authorsguild.org/news/sues_google_citing.htm
• http://www.publishers.org/press/date.cfm

IV. Microsoft has announced an opt-in book search project

• Info here: http://www.microsoft.com/presspass/press/2005/oct05/10-25MSNBookSearchPR.mspx
• What legal concerns will Microsoft face if/when this project is launched?
• How practical will this project be? Must copyrights be infringed (as is alleged with Google) to create a useful site?

V. (Optional) The New York Public Library hosted a public discussion on the Google Book project.

• A transcript and audio/video archive is available at http://www.nypl.org/research/chss/pep/pepdesc.cfm?id=1661

• John Battelle posted a blog on the ramifications on the AAP/Google lawsuit here: http://battellemedia.com/archives/001952.php
• InformationWeek published an article casting doubt on whether the courts will stop Google. http://www.informationweek.com/showArticle.jhtml?articleID=170700423
• Review also a report from the Congressional Research Service, discussing Google’s online indexing and fair use under copyright law: http://www.opencrs.com/rpts/RS22356_20051228.pdf
• For a discussion on copyright, look through Bill Patry’s copyright blog: http://williampatry.blogspot.com/. Patry posted an item on Google's Book Search project when it was first announced, followed by a second item eight days later:
  • September 15, 2005: Scanning Documents
  • September 23, 2005: Google Revisited

VII. Legal discussion

• (Optional) Look through Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003), which discusses fair use of photographs converted into thumbnails. Please note that the original decision was withdrawn. The final decision affirmed the provider's use of thumbnails because the provider transformed the photographer's images. The Court did not address the question of full-sized images.
• UMG Recordings v. MP3.com case — MP3.com held liable for willful copyright infringement:
  • (An edited version of the case is available at http://www.tomwbell.com/NetLaw/Ch07/UMG.html)
  • In this case the streaming was legal, because MP3.com had purchased performance licenses from ASCAP and BMI. However, the reproduction rights were still owned by the publishers. Therefore, the copying of the recordings in order to faciliate the legal streaming was deemed an infringement of the publishers' rights. MP3.com argued unsuccessfully that the copying was fair use.
  • Compare this to Google. Showing snippets of material may be lawful, however, what is the status of the copies that Google uses to search through?

VIII. Short field trip project (on your own)

• Copyrights can last for long periods of time — 95 years for works originally published before 1978, and until 70 years after the death of the author for works created since.
  • Copyright owners can assign any part of a copyright at any time.
  • There is no central registry of copyright owners; copyright registration is completely optional.
  • Before the 1976 Copyright Act, the law required the copyright owner to renew copyright in the 28th year. If the copyright was not renewed, the work entered the public domain. A large number of books published before 1964 entered the public domain because of non-renewal. There is, however, no easy way for Google to find out whether a book is in the public domain because of failure to renew.
  • Google could pay the copyright office to conduct a copyright search for each book. The copyright office charges $150 per hour for its search services. Because the law does not require copyright registration, the results of such a search would not be conclusive.
• Go to the library and find 5 useful books
  • Locate the copyright owner
  • If Google loses its lawsuit, how may it obtain permission for these 5 books?

IX. Questions

• What role, if any, does the doctrine of Fair Use play in this situation?
• Is Google’s position defensible under copyright law?
• Should Google be allowed to scan books for indexing under copyright law?
• Libraries tend to have old editions of books, and so the copyright holders may change substantially throughout the years. This may cause problems for Google in terms of obtaining copyrights. What would Google need to do in order to ask permission rather than perform an opt-out policy?
• Is Microsoft’s Book search a more tenable approach? What problems may Microsoft face?
• Are the publishers’ rights being infringed?
• Final question: To whom should we allocate the risk of copyright?

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