Google has decided to go in a new direction with their Print for Libraries program after the publishing community began voicing their objections to the project. Google announced on August 12, 2005 that it will temporarily stop digitizing in-copyright books from its library partners and will concentrate on public domain materials (any book published before 1923 or ever published by the U.S. government).
In May 2005, the Association of American University Presses challenged the Google Print for Libraries program as a major breach of copyright. Google says it will include copyrighted material but will give publishers a chance to request that their books not be included. But the opt-out offer does not address the belief that the entire program is built on a foundation of purposeful copyright violation.
As explained on the Google Print site, “Information for Publishers about the Library Project” “Our ultimate goal is to work with publishers and libraries to create a comprehensive, searchable, next-generation card catalog of all books in all languages that helps users discover new books and [helps] publishers find new readers.” The list of benefits for Google Print publishers remains very lengthy. It even refers to the value of market research data collected for book titles, which allows publishers to track the number of people who look at a book’s pages and/or click on the “Buy This Book” link, in order to decide whether the book might be worth reprinting.
Google's library is an ambitious project that began in December 2004 by scanning books that are not covered by copyright located at five libraries, including those at Harvard and Stanford universities. The texts are fed into the Google search engine. A Google search for "George Washington" will turn up not only Web pages about the president but books that mention him as well. The intent is to help users find books and not to read them online. Books are displayed a page at a time, which makes it difficult to read long passages.
Publishers say Google should ask permission to use their books, rather than requiring them to opt out. Free-speech advocates say Google shouldn't give publishers the choice of opting out, because copying the books for searches is a fair use. Critics of the program said that Google is putting the weight of copyright protection on the copyright holders instead of the violators. Google's position is that what we are doing here is legal under the principles of fair use.
Google said it would go ahead with plans to digitize, and make searchable, works that are in the public domain, that is, those whose copyrights have expired. But in response to discussions with publishers, authors and others who hold copyrights, Google said it would wait until at least Nov. 1 before beginning to scan works that are still under copyright.
While Google's intent may be honorable, their intent is not to make a archival copy but instead, their plans are to create a copy that would be redistributed in a derivative format. While Google claims that the method of distribution would make it diffficult to read, that is not the issue. The distribution of copyrighted materials without permission from the copyright holder would appear to be a violation of copyright law.
Although Google may appear to violate the law by scanning without permission the entire copies of books protected by copyright, such an act is not illegal if it is considered “fair use” of the material. The most important issues for the courts would be the character of Google’s activity, its adverse economic impact on the copyright holder, and the amount of material it uses in proportion to the whole and if that is key to the work.
There is a legal precedent for any court battle between publishers and Google, and it favors Google. In the 2003 Kelly v. Arriba Soft Corp. case, a photographer sued a search engine claiming copyright infringement for displaying thumbnail images of work originally posted on his site. The Ninth Circuit found in favor of the search engine stationg that the act of copying the material, even though it was for commercial purposes, was not exploitative and therefore was fair use.
The question being asked is if the Ninth Circuit's ruling in Arriba applies to the Print Library Project. Google’s copies of books will not replace the originals, and the company does not profit from the sale of any books it scans, he wrote. Band does not represent any entity with respect to the Google Print project.
The debate is unlikely to be resolved soon. An injunction stopping Google from proceeding is a possibility. However, some legal experts feel that despite objections from publishers and writers copyright law appears to be on Google’s side. The social value of Google’s initiative to digitize library books, including those protected by copyright, will likely weigh heavily in the search engine’s favor.
Huen, Christopher T. Courts Unlikely to Stop Google Book Copying. Internet Week, September 2, 2005.
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