Google Responds to Authors Guild Lawsuit

Phoe6 writes "Google has responded to the Authors' Guild lawsuit of "massive copyright infringement". They point out that the Library Project is 'fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself, which allow everything from parodies to excerpts in book reviews.'"

Comments

my.mp3.com

[interiot]

Does this relate to the my.mp3.com case at all?

If I remember correctly, mp3.com was found to be guilty of making internal copies of all the CD's they touched. Isn't Google doing the same thing, eg. making a massive amount of copies of the books they touch? Insofar as it isn't legal for other corporations to put entire books through the photocopy machine, or use a single copy of software across all computers (without a corporate license)?

Re:my.mp3.com

[cpt kangarooski]

Yes. Reproduction even without later distribution of the unlawfully made copies is an infringement.

If Google scans in this stuff to their database, that's going to get them in trouble right there, unless they have some sort of defense. It doesn't matter how much they show to users down the line (although that can also be infringing).

Re:my.mp3.com

[Anonymous Coward]

Fair use doesn't allow random excerpts regardless of how big said excerpt is. Fair use allows an excerpt of the necessary size to facilitate commentary. For example in a review or a discussion of the techniques used. Google doesn't include commentary, analysis or anything with their excerpts.

The purpose of Google's attempted inclusion of protected works is to increase the hit rate on their ads. You are more likely to use their service, thus more likely to see one of their ads, if you believe their database holds all published works rather than just a historical database of works prior to 1923.

This is what I want to know

[Nuttles1]

In order to have an opinion on this whole copyright thing between google and authors/publishers I would like to know the following. How is google going to keep people/organizations from creating or otherwise attaining large server farms or some method to fool googles methods of detecting unique visitors. I mean if such a server farm or something like it can be created/obtained, couldn't one theroretically compile whole texts. In essense getting digital copies of whole libraries? If so, publishers and authors should be very concerned and either should be working with google to solve this issue or sueing them. If not, and this very well may be the case because google as a company is just smart then these publishers/authors are just greedy jerks and should be publically flogged. Does anyone know how google combats the problem of people/organisations compiling whole works?

Re:This is what I want to know

[carlos_benj]

How is google going to keep people/organizations from creating or otherwise attaining large server farms or some method to fool googles methods of detecting unique visitors. I mean if such a server farm or something like it can be created/obtained, couldn't one theroretically compile whole texts.

Sure they could. All they have to do is submit multiple search strings with the text of the book they want to replicate. In order to do this they would have to very nearly replicate a good percentage of the work in their search strings which would yield a jumble of excerpts from various parts of the book that would then need to be reassembled in the correct order. They'd have to have a photographic memory or a copy of the text on hand to enter their search strings and it would just be simpler to either scan it yourself or retype it by hand.

no shit

[lucky130]

Who cares if it falls under those specific examples of "fair use."

This is from copyright.gov:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

      1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
      2. the nature of the copyrighted work;
      3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      4. the effect of the use upon the potential market for or value of the copyrighted work.

I think google's implementation of this project very clearly falls under scholarship and/or research purposes. Giving the reader brief snippets of the written work along with bibliographical information so they can find a copy of the work themselves certainly satisfies (3) by not reproducing a substantial portion of the work and (4) by, quite possibly, increasing the demand for the work when users desire to seek out a copy to actually read/study.

wrong litigants

[Anonymous Coward]

Why aren't the libraries being sued?

Aren't they the ones supplying the data to Google?

Are libraries explicitly permitted by the copyright holders to give that information to Google?

Sparknotes, meet your doom!

[Umuri]

Here's an interesting light that i don't think anyone has bothered addressing. Yes we know the authors might or might not be up in arms about this, but what about the teachers? IF the service really works as they say, then students would be able to quickly search out phrases or texts from books, something a lot of current "educators" use as homework questions since it's pretty impossible to know where they are unless you've read the book. But hey, now we have google? Pretty soon you'll see all schools banning google just because it's getting too useful!

Author's Guild

[Anonymous Coward]

The Author's Guild also was the organization that attacked Amazon for selling used books. (Previously reported by /..)

I know a couple of best-selling authors personally, and none of them have a high opinion of the Author's Guild.

From a Librarian

[jfrumkin]

IANAL (I am not a lawyer), but IAAL (I am a Librarian). While I personally agree that there *should* be the ability to digitize these collections and make them searchable, I think Google's in a whole heck of a mess here.

I don't think that this is necessarily fair use. The article linked to in post presents a case which relates to images, and traditionally copyright around images has been dealt with much differently than copyright related to texts, so I'm not sure how relevant the stated case might be. That being said, the one major flaw I see is that the libraries Google is partnering with purchased the books, and Google is 'borrowing' those books. If I borrow a book from my library, I am not allowed to photocopy the entire book. Maybe the Library has the right to do so for preservation (i.e. backup) or other purposes, but I do not. Even though Google is trying to hold to fair use practices through what it offers to its users, Google itself seems like it is likely to be breaking copyright by holding full copies of these works.

Now, should the publishers be making a big fuss? Well, maybe and maybe not. It doesn't appear that Google's effort will harm publishers, and is likely to help them. However, Google is not the only player out there who would be interested in massively copying monographs, and if the publishers let this pass, it might set a precedent which could come back to bite them. It isn't clear to me that the publishers are in the right, or that Google is entirely in the wrong, but if I were a publisher, I'd do the same thing, most likely.

I believe the other crux of the problem is that Google bulldozed its way forward with this project. Imagine if it was Microsoft instead of Google doing this; the slashdot comments would probably be entirely different. I admire Google moxie in pushing this issue, but I also am pained that they lacked the patience to work out some of the issues with the publishers before they pushed forward.

Re:so if you dont' want your book..

[99BottlesOfBeerInMyF]

basically googles stance is that they can do whatever they want with the librarys books unless you specificially tell them to not do it.

Actually Google, and the law as I read it both say Google can reproduce and publish small excerpts of any book they want to, but if you ask them not to they will exclude your book to be nice. Legally, they have no such obligation.

which actually sounds a bit funny as they seem to be searchable in full and basically readable in full as well

Being searchable in full is sort of the point, and is metadata, i.e. data about what is in a book. That data is a fact and is not copyrightable. As to entire books being viewable, that should only apply to public domain works and works where the copyright holder gave Google their permission. If you can view more than a few pages of any one book, and you don't think it falls into one of those categories, you should submit it as a bug.

making indexes that contain the copyrighted material in full is copying - or else we would have a very convinient loophole to destroy all copyrights.

Sort of like copying a work in RAM, and/or across network devices is copying? The courts have taken into account the intent and the end result of this sort of copying before. If the end user only sees a few pages, then that is probably what the courts will rule is the copied portion in any given instance.

Playing devil's advocate for a sec

[hurfy]

This is what Google will show people. They will not let you infringe the copyright perhaps.

but

Hasn't Google already copied the entire thing for their own use?
They are not a library, they will not loan me the book, they are a corp.

How is that ok, but i can't copy it for my use. I want to have a copy handy in case a friend asks a question, i could look up the answer and only provide them that snippet so they don't have to get the whole book. Honest i won't read it all (unless thats what it takes to find the snippet i need...)

I do agree there should be a digital library of everything, but without a specific mandate from congress or something to allow it i don't see how it passes muster.
Greater good? Will there be no ads on sites related to this function?

Re:for it to be fair use

[mechanicalturk]

wouldn't google have to buy all of the books?

You need not own the books for it to make fair use of their contents. Direct quotation is a case to point. If I were required to own a copy of all books that I use as references in essays/assignments, then I simply could not afford to do them.

Imagine the costs of doing a PhD under those conditions!

Could a bot retrieve a whole work?

[DeadVulcan]

A more interesting question is whether someone could write a bot that could run a whole bunch of queries and eventually piece together an entire work.

And if so, then I'd venture that Google needs to do something to assure the Authors Guild that they protect against that kind of abuse. Not that I think it would be all that difficult.

Re:Could a bot retrieve a whole work?

[zalas]

Coincidentally, I was trying to piece together some text from a website that had been taken offline. It was still in Google's records, since I could search for it, but there was not "Cache" option I could click on. What I essentially did was try to remember pieces from the original text, and search using Google to get it to highlight it, and then searching a little bit ahead and back with the other words it pulled up. It doesn't work too well, since sometimes it refuses to go forward or back; your search term would simply be the first entry or the last entry in the excerpt. I had to come up with a lot of "seed" phrases in order to get the whole thing, which was only around 20 lines of text. Theoretically, this would mean that the bot would have to have a dictionary of "seed" words or phrases to start with, and then once it gets all its sequences, it would then need to piece them together like one would piece together the amino acid sequence of a protein from subpeptides.

Fair use not automatic

[The Empiricist]

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair . . . I think google's implementation of this project very clearly falls under scholarship and/or research purposes.

All four factors of "fair use" must be taken into consideration by the courts. See Rich. And because any alleged infringement can usually be distinguished from pre-existing case law, there is no such thing as an automatic fair use because one of the factors weighs heavily in favor of the alleged infringer. Copying 300 words can be an infringement while copying an entire work may not be an infringement. See Hollaar .

Until the courts decide whether a particular activity is a fair use, the alleged infringer is legally a kind of Schrodinger's Cat. Until the courts decide, Google is in a sense both a guilty infringer and an innocent fair user. Only legally observing Google's state by trial can definitively answer the question of whether Google's acts infringe on the rights of the plaintiff authors.

I guess I now understand...

[Anonymous Coward]

"Why does Google (and other search engines) assume that they have the right to copy and reproduce the entire content of my site without seeking express permission?"

Why do people *in general* assume they can come to your web site and copy it to their browser cache without seeking express permission?

Why is that?

There is very fundamental reason.

A really really fundamental reason...

Its so basic that perhaps you're too "smart" to see it.

Its so so basic. Have you guessed it yet? Have you?

Think basic. Really basic. Why do people assume, in general, its okay to go to your web site and copy it over the internet to your hard disk to be viewed by you.

Why do people make the assumption that its okay without seeking permission.

Think think think.

I know you can do it.

I know you can.

Go ahead.

Really.

Go ahead.

Seriously, can you not figure this out?

If you can't figure it out, I suggest asking someone on the short bus tomorrow on the way to "school".

Re:I guess I now understand...

[MrAndrews]

"AdWords"

Might just be me, but I've never seen AdWords on the Google cache pages. You do see them on search results page, but the act of linking to various pages on your site isn't commercial exploitation of your content. It's a clever distinction on their part that is probably designed to keep people from suing them for cashing in on other people's content.

Google-Watch wrote to The Authors Guild in July

[Everyman]

I wrote to administrators, and to each Regent at the University of Michigan, trying to get them to look at Section 108 of the Copyright Act, which specifies the limits of library copying as an instance of fair use. I believe that Section 108 prohibits U.Michigan from what they are allowing Google to do with their books.

I also wrote to the Authors Guild, expressing my frustration that U.Michigan ignored me. A copy of that letter is here.

Google is a weed growing in the copyright garden. I was thinking that Section 108 might be used to trim back the weed. The Authors Guild is wisely hoping to pull it out by the roots. If that doesn't work, maybe they can trim it back later.

I'm quite happy with The Author's Guild suit. It looks to me like they know what they're doing. Maybe five years down the road, when the Supremes establish that opt-in also applies to websites, then we'll be able to force robots.txt into an opt-in mode instead of the present opt-out mode. That will fragment the monopoly of the big search engines, and help to give the web back to the webmasters.

If Google could show snippets from books without first copying the entire book, and if they did this without any commercial interest or intent, then I think they might have a fair-use argument. But there are some hurdles before they can get to that argument.

Many Google acolytes like to point out that Google already grabs much of the web in its entirety, which is copyrighted by default. That's true. But that doesn't mean it's legal. All it means is that search engines started doing this before webmasters got organized into associations (they still aren't organized), and there was no one to challenge the engines.

Now if webmasters had been around as long as authors, and were organized to protect their interests, the engines would have never gotten this far with their illegal crawling for profit.

Re:Google-Watch wrote to The Authors Guild in July

[joelsanda]

Many Google acolytes like to point out that Google already grabs much of the web in its entirety, which is copyrighted by default.

This statement is far too general. Could not the same claim be made of any sytem that categorizes books and journals so a potential user locates them - like a library card catalog?

Pointing to a resource is a much different animal than illegally copying the resource for one's own gain - financial or otherwise.

Furthermore, the prohibition of copying copyrighted works specified in Section 108 of the copyright act is for libraries and archives, and even there specifies a copy can be made if the copyright notice is maintained, it's not for financial gain, and isn't available to people outside of library/archive premises. See: http://www.copyright.gov/title17/92chap1.html#108.

Of course, the idea of 'premises' is laughable in the Age of the Internet, but I think the point you tried to make citing Section 108 is a real stretch and in no way bears any resemblance to what the law intends.

Re:Google-Watch wrote to The Authors Guild in July

[Anonymous Coward]

I wrote to administrators, and to each Regent at the University of Michigan, trying to get them to look at Section 108 of the Copyright Act, which specifies the limits of library copying as an instance of fair use. I believe that Section 108 prohibits U.Michigan from what they are allowing Google to do with their books.

Libraries may perform any action in accordance with Section 107, whether or not it is granted explicitly under Section 108. Google argues that excerpts such as it is producing are covered under fair use. For instance:

If Google could show snippets from books without first copying the entire book, and if they did this without any commercial interest or intent, then I think they might have a fair-use argument. But there are some hurdles before they can get to that argument.

Google doesn't have to copy the entire book to create an index. All it does is create a large wordlist, and for each word makes a reference back to the book for each occurrence of the word. This is perfectly legal, since it's simply a table of factual data. The only addition is that Google adds, for each reference, the context within which the word was found, e.g. the actual excerpt from the book. It is entirely possible that Google only stores the excerpt for each reference in the index, and not the entire book, which should be fair use. What is the use of an index that only gives you a result of page numbers from a book (and edition!) that you don't have? How else would you propose to create *any* global index for searching books that wouldn't need to provide some sort of context? The utility of such an index is undeniable, and as such copyright anachronisms shouldn't impede the progress of science.

Many Google acolytes like to point out that Google already grabs much of the web in its entirety, which is copyrighted by default. That's true. But that doesn't mean it's legal. All it means is that search engines started doing this before webmasters got organized into associations (they still aren't organized), and there was no one to challenge the engines.

I bet you'd like to get rid of browser caches and those "Internet accelerators" that store copies of web pages, too, right? For heaven's sake, the web servers copy their data down the line, explicitly allowing it to be copied an almost unlimited number of times by an unknown number of routers in between the client and the server, but suddenly the host is completely limited in what and how long it can store that data? Insanity. "Property" distribution over the Internet simply does not have any rules, and way too many people like it that way for it to be stopped now. The simple fact is that information that does not allow itself to be used on the Internet will die, and be replaced by superior information. Is that what you want? A bunch of authors publishing dead trees for a slowly dwindling population of rare book collectors?

Now if webmasters had been around as long as authors, and were organized to protect their interests, the engines would have never gotten this far with their illegal crawling for profit.

If the monks and scribes had been more organized (they already were, as I recall), they could have prevented the wholesale printing for profit by the owners of printing presses. As it stands, Google could legitimately do the same job as a publisher, that is offer the entire content of written works to users on the Internet, and pay the authors some percentage of the profits they make from ads. The problem is that publishers currently have a monopoly on publishing, and generally lock the author into giving them an exlusive publishing deal for a very long time. As such, publishers have a real conflict of interest regarding the use of an author's work by Google, a potential competitor. The result is that the readers and researchers of books suffer. Most likely it will take a small revolution to change this, and if Google starts it, more power to them.

Re:The Internet is free

[Castar]

Libraries are the same way; if they were invented today the Author's Guild would probably be lobbying against them.

I actually read a quote by the head of a publisher's organization - she said that they would dearly love to go after libraries, but it wasn't a battle they could win, because libraries are seen as such a good thing. It would be like going after children's hospitals, or puppies, or something. I can't find the quote after a quick naive Google, but I think it was covered on Slashdot a while ago.

I wish they would go after libraries, because then people might realize what money-grubbing greedheads the various publishing businesses are.

Re:Copyright Law

[yfarren]

Actually, my understanding of what Google is claiming:
A. Under Fair Use, we have the right to display exerpts of ANY book, copyright or no.

If they dont copy the whole book, but rather, store the book as an index, they are on (from my little understanding of the law) fairly solid ground here. If they store the book, in a serially readable fasion, they might have some greater issues with the scanning. But if they never actually store the book in a serially readable manner, and merely make trees out of the book, they really dont need an authors permission at all.

IANAL but Google scanning and indexing of the books has some case law behind it, as being leagle, also. If you read the linked article (http://www.policybandwidth.com/doc/googleprint.pd f)
you will see an argument that the storing of the books, totally, with the use of only providing exerpts of the book is also leagle.

So what google is saying is "look, I can do this one way or the other, with out without your permission. However, if you REALLY dont want to be included, then hey, no big deal, I will respect your wishes. I dont have to, but I like being polite."

So Google basically it doesnt have to be opt in or out. But Google is being polite in letting you opt out.

It is interesting to me that on slashdot people are so "Screw the man" when it comes to the RIAA defending itself from people copying copyrighted works. But they feel that a corporation should not be able to use principles of fair use. Consider the priciples, not who is invoking them.

Eliminating Google from the Web? Art thou crazy?

[Anonymous Coward]

I think you fail to grasp that if your position were upheld the Web would become relatively useless. Without Google or other search engines to give us some sign posts to various treasure troves we would be searching a rather large universe of sites and pages without any hint of a map. However biased Google (or for that matter any other web search engine you may wish to name) may be, without them we poor rovers of the web would never find anything except by accident. Site names are often non-explanatory or confusing, indexes may not be updated properly, links break, etc. Without search engines we're stumbling around in a luggage and filing cabinet filled basement without lights and seeing by a single candle.
Coincidently this is about the same situation as trying to find an obscure text in a major library without a central index or card catalog to guide you. A situation that Google is attempting to cure. Now I have no idea what has the Authors Guild's knickers in a twist, but apparently they must all be famous and well known writers whose works are at the front of the shelves. Those writers whose publishers did not, sadly, have enormous budgets to blow on lurid graphic covers or whose works appeal only to a limited audience would be happy to have any publicity they can get. Space on bookshelves at your local store is limited, finding a book through Amazon applies only to books in print and readership or concern for out of print or older volumes at libraries is decreasing. A search service that brings any attention to older works or provides a search function to obscure or less popular works seems to me to be one way to give the print medium a massive shot in the arm.
Having friends who are lesser known writers I can tell you that they are, to a one, solidly behind ANYTHING that will give them greater exposure to the world at large. Carried to its limits the Google project will do that. Speaking as a former collage student myself I know I would have welcomed with open arms anything that would have allowed me to obtain a greater range of written opinions on any topic that I had a research paper due on. Speaking as an avid reader who enjoys finding rare classics to this day, a search engine that might suggest to me some missing tome that I might find would assist me greatly to locate new gems for me to read.
What's not to like!
Google has allowed me to find all kinds of cool web sites to learn from (the website for the newspaper for the Antarctic research stations for example) that I would never have found on my own. I simply type in a topic and even the most obscure sites pop up. If an oddball notion seizes me I can find a dozen references on it in a moment, if my children need information on any school subject simply type it in and it's at your fingers. I know of few web designers that wouldn't want a Google listing, Far from hurting web site owners Google has been a godsend! How else would, for example, a small beekeepers site in Montana be able to advertise it's products to a wider audience, or a metal craftsman in Maine be able to give notice of his wares? Leave it to the webmasters? What elitist poppycock!
Google (and its competitors and predecessors and followers) has been the biggest boon to the web in its creation. If it can do the same for books and the written word then we will finally have achieved what Dr. Vannevar Bush intended hypertext to be (a name I was able to locate quickly and easily, by the by, by typing "History of Hypertext" into Google).

For those who do not understand

[HuguesT]

OK, what is the guild complaining about ?

Try the following experiment.

Go to Google Print, search for "Image Processing Handbook", The first item is the J.C. Russ book. Click on it. This is a recent, copyrighted book.

Now search for "noise", go to page 19. You can read the book from page 17 to 21. Notice the pretty pictures.

Now look for "coarsening", a rarish word found on page 21. Select page 21, and Lo and behold you can now also read page 22 and 23. Repeat ad nauseam.

In most book a few pages are permanently blotted out, but by and large you can easily read *most* of the book.

Try the same trick with any book in Google Print, it works.

THIS goes beyond fair use. The guild has a point. They will win that case, unless Google scale back their offering dramatically, to the point where is has no value beyond what Amazon (say) offers now.

Do you understand now? Thanks.