The Other Shoe Drops: Google Print Sued for Copyright Violation
by
Barbara Quint
Posted On October 3, 2005
Some would say it had to happen. And it has. Google has been charged with violating copyright in its massive digitization program, Google Print for Libraries. Publisher associations have complained strenuously about copyright concerns (see "Google Library Project Hit by Copyright Challenge from University Presses," http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16195), and Google has responded by suspending digitization of copyrighted works until November (see "Google Slows Library Project to Accommodate Publishers," http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16141). Nevertheless, the lawsuit has commenced. However, instead of publishers, three authors and the Authors Guild (http://www.authorsguild.org) have filed charges of copyright violation. National press, blogs, listservs, etc., have erupted with commentary, some siding with one side or the other, and many, sadly, incorporating some errors in fact. (They have my sympathies—see "CORRECTIONS: Google Print Not All I Said It Was," http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16132; "Searcher's Voice: Apology," http://www.infotoday.com/searcher/oct05/voice.shtml; and "Up Front with Barbara Quint: About That Flaw in Google Print," Information Today, October 2005)."Does Google Library violate copyright?" by Peter Suber is the best article I have seen for rounding up coverage of the controversy. It was published in the SPARC Open Access Newsletter, issue 90 (http://www.earlham.edu/~peters/fos/newsletter/10-02-05.htm). Though the title of the newsletter alone tips readers off to Suber's general position on the issue even before they read his clearly pro-Google Print analysis, his sourcing is impeccable. The second sentence in the article gives the best advice: "If you don't already know the basic story, skip most of the media coverage and go straight to the sources …" Just to get started, try reading the complaint itself as submitted to the U.S. District Court for the Southern District of New York (http://www.boingboing.net/images/AuthorsGuildGoogleComplaint1.pdf). Rather than duplicate Suber's work, let me merely add what information I gathered while following this story. According to Fred von Lohmann, senior intellectual property lawyer for the Electronic Frontier Foundation and a Google Print proponent, the defense by Google will turn to a 2003 case entitled Kelly v. Arriba Soft Corp. In this case, the Ninth Circuit Court of Appeal found in favor of a search engine that copied images from a photographer but displayed them only in thumbnail form. The decision held that the commercial purpose of copying the material was not exploitative and constituted fair use. Google Print's displays of snippets of text from full-text copies of books, according to von Lohmann, would seem similar. However, another legal expert advised me that the Kelly v. Arriba Soft Corp. case holds as mandatory precedent only within the Ninth Circuit's jurisdiction, rather than nationally as do cases decided by the Supreme Court. The appellate court with the largest body of intellectual property cases and the highest reputation in that area is the Second Circuit Court of Appeal, which is the jurisdiction to which the U.S. District Court for the Southern District of New York belongs. In fact, among the cases citing Kelly v. Arriba Soft Corp., the only one citing it with disfavor was from New York, the jurisdiction in which the Authors Guild suit is filed. Ultimately, however, both legal advisors with whom I spoke assured me that any case that elicits split rulings from these appellate courts would virtually assure an appearance before the Supreme Court. Speaking of legal politics, I interviewed Paul Aiken, executive director of the Authors Guild. He said that the same board that unanimously agreed to sue Google also unanimously agreed that the Google Print goal was "a grand idea." Many of his remarks focused not on Google stopping its effort, but on the need for licensing and licenses that would accommodate most or all authors. He considered a favorable decision in their case as a step toward ensuring that licensing would go forward. Perhaps Aiken should be negotiating with the Open Content Alliance (see today's second NewsBreak, "Open Content Alliance Rises to the Challenge of Google Print," at http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16110).
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