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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.'"
No different that cataloging the internet...which they also did without the copyright owners consent.
I'm just waiting for Google to release Suegle.
Enter the name of the person/company you want to sue and click "Sue". We'll e-mail the court date to you, along with relevant precedent to your GMail account!
3rd google article in two days...
a well, if you ask me there is nothing wrong with the way google does this. they do not make the entire book availible, only very small parts of it. and if I remember right, amazon has been doing the same thing too for quite some time.. they just didn't have a search engine to search through ALL the books.. you could only search in one.
If slashdot can make money off posting dupes, why can't dupes make money off posting on slashdot? ;}
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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)?
They will get more exposure of their books and the service probably lift their sales, cant their greedy minds understand it?.
The use of from...to implies it's a range. So while it's possible that it's similar to saying "integers from 1 to 2", it could also be from 1 to 100 and they're glossing over the 2 to 99 part.
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The article Google's response points to a case that they are claiming set the precedent for search engine use of copyrighted material, including for commercial purposes:
The leading decision that considered the fair use issues relating to search engine operations is Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). Arriba Soft operated a search engine for Internet images. Arriba compiled a database of images by copying pictures from websites, without the express authorization of the website operators. Arriba reduced the full size images into thumbnails, which it stored in its database. In response to a user query, the Arriba search engine displayed responsive thumbnails. If a user clicked on one of the thumbnails, she was linked to the full size image on the original website from which the image had been copied. Kelly, a photographer, discovered that some of the photographs from his website were in the Arriba search database, and he sued for copyright infringement. The lower court found that Arriba's reproduction of the photographs was a fair use, and the Ninth Circuit affirmed. With respect to the first factor, "the purpose and character of the use, including whether such use is of a commercial nature," 17 U.S.C. 107(1), the Ninth Circuit acknowledged that Arriba operated its site for commercial purposes. However, Arriba's use of Kelly's images was more incidental and less exploitative in nature than more traditional types of commercial use. 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.
This is just another indication of stupid industry groups. It's not limited to commercial media, folks.
It seems like very time someone comes up with some cool thing that makes the consumer's life easier, the affected industry panicks and attempts to get the technology quashed. In this case I'd think that authors would want their material easily referenced in part, because they might actually sell copies if people need the information. Without something like this available, authors have more chance of remaining in obscurity or never having the chance to share their work with a larger audience.
Industry groups are just dumb.
Do not look into laser with remaining eye.
> amazon has been doing the same thing too for quite some time.
Amazon does this with the participation of the publisher, and there are no excepts printed if the publisher objects.
Google turns this on its head and says publishers must opt out.
It's totally different.
What TFA does mention, but kind of glosses over, is that copyright holders have to opt-out of having their works marked as 'not copyrighted'. It seems that Google is being a little disingenuous. They know that not all copyright holders will opt out. It's kind of like saying 'If Tom Clancy does tell me otherwise, he won't mind if I photocopy his new book from the library.' IANAL, but I think it should be an opt-in system, no?
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This is something that, in my opinion, should clearly be opt-in, not opt-out. Google makes you jump through some hoops to stop them from slurping your material. Why is the burden placed on the copyright holder? If Google wants the information, Google should do the work. Of course, the minor fiasco with opt-in with Google Video proves that Google isn't up to the task. They recognized their failing and instead of trying to correct it, they decided to reverse the direction to the disadvantage of copyright holders. I know you want to automate everything Google, but sometimes hiring a staff to do real work is necessary.
From Google, re: removing your book.
"If you're not a Google Print partner and want us to avoid your books, you'll need to provide us with a small amount of information about yourself as well as a list of the books you don't want in Google Print. Unless you specify otherwise, we'll use your information only to verify that you are indeed the copyright holder of that particular book."
But books are not.
Also, to be honest, times change. Because Web search engines existed before today's copyright madness, they've been effectively grandfathered in. Libraries are the same way; if they were invented today the Author's Guild would probably be lobbying against them.
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?
My +5 Insightful, Interesting, Informative and Funny post are free.
Now the -1 Troll and -1 Flamebait stuff...that I want money for.
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.
Until you've used the Google tool, please don't post on its merits or dangers. From what I've seen using the tool it really looks to be useful for researchers and students. Claiming this is stealing from authors it completely wrong headed. If anything this is a giant electronic library card catalog tool.
Corporate America of course won't be happy until you pay a per-word usage fee for reading a library book.
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Isn't this exactly what MP3.com did years ago with CDs. Behind the scenes they copied every CD they could get there hands on. Then they were able to copy these mp3's into the accounts of users that actually had the physical cd.
When they were sued out of existence, they basically lost not because they were giving users mp3's...but because they had created copies of copyright works into their database.
Just the act of making the original copy into their own database is where they broke the copyright. I think this is where Google might run into some serious problems.
If MP3.com could not do this years ago with CDs, why should Google be allowed to do this now with books?
I'm not saying what is right or wrong. These are just examples of how copyright is hurting the public interest rather than helping...as is the purpose of copyrights.
If a book is out of print it is unlikely that the publisher will opt-in. In particular, if the publisher is out of business there may be no way to opt-in at all, ensuring that those works will be lost forever.
And as a practical matter, Amazon/A9 already took care of indexing the books whose publishers are willing to opt-in.
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.
No doubt there are two problems with this: the first seems to be that authors (to the best of my knowledge) haven't been asked either piecemeal or via organizations like the Authors' Guild for permission. The second is that Google will no doubt be making money as a result of providing this service and everybody else wants a cut.
However, we have reached an unfortunate point with copyright and fair use where we'd rather halt innovation than admit that copyright holders' expectations have reached a point of making it cost- and time-prohibitive to meet their demands and are to the point of stagnating not only the public domain but technologies and services that deliver or even touch upon copyrighted content. In this sense, creating a scenario that is not unlike the movie industry's dire predictions about the VCR in the early 80s.
It would be best, of course, for Google to attempt to work out an amiable solution with authors without crippling their service to an unreasonable extent, but I feel that the intent of fair use (if not its prevailing interpretation) falls in their favor... as does the bottom-line for both Google and the membership of the Authors' Guild.
Try not. Do or do not, there is no try.
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I e-mailed Google to ask if I could get my search results to show up on regular google searches, and they said they were studying the possibility. I think what that really means is, they got sued, and they're looking around for a life preserver because they don't know what to do. IIRC, there actually was a period where my books would show up on a regular google search, but now they don't, which is probably google's way of reducing their liability.
It's too bad that the opt-in publishers' program and the opt-out library-based program seem to be joined together in this way, since the former could have been a really good program, but the legal problems with the latter are dragging it down.
Find free books.
What TFA does mention, but kind of glosses over, is that copyright holders have to opt-out of having their works marked as 'not copyrighted'. It seems that Google is being a little disingenuous.
IANAL, but have done some research into copyright law. Copyright exists not only to protect the author/publisher, but also to provide legal access to information. By copyrighting a book, the publisher has agreed to allow fair use of the material. Google is allowing opt-out as a courtesy to publishers, not through any legal obligation.
While I can understand some of the angst people are directing at Google, here's the real issue:
How the hell do you practically determine (let alone contact) the current copyright holder for books that have long been out of print?
Amazon hasn't faced this problem because they actually sell books. Amazon is only scanning and making searchable those books that it can obtain and sell -- and hence can contact the publisher. It's not an issue of Amazon being "honorable" and Google not.
Google is going to be rendering searchable books that you can't find on Google, or in Barnes & Noble, but only in your library, or maybe a distant university library. If they had the burden of tracking down who, if anyone, still cares about the book, it would remain lost to you. What Google is doing is simply saying, "if you care about your book, just let us know."
And then when you contact Google, proving you're actually the copyright holder isn't an onerous "hoop" you have to jump through. Frankly, I'm surprised you're complaining about it. Even the DMCA requires copyright holders to prove they hold the copyright when they issue a takedown notice.
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!
You never realize how much manually made unmanaged "linked" lists suck, till you have src.link.link.link.link...
Sorry, where I come from that's called software piracy and is definately illegal.
Not if it's the functional equivalent of a screen shot.
--
As a matter of fact, I am a lawyer. But I play an actor on TV.
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.
I work in a university library which is trying to go as digital as possible. The publishers are bending us over a barrel and fucking us in the arse with fees, fees which when not paid result in all future access being cut off. Google is a for-profit corporation selling branded advertising which believes it has more fair use rights than us, an actual "scholarly" institution? Jesus fucking christ. I was working in a copy shop when the SCOTUS dropped the hammer on Kinko's as to the line between "fair use" and duplication for profit. It hasn't moved much since then, and it'll be damned interesting to see SCOTUS reverse itself on this.
"Made up/misattributed quote that makes me look smart. I am on
Authors cannot opt-out of the lending library system.
Sure they can.
All they have to do go to every lending library in the world and check out the books they wrote. Then simply not return them.
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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.
"What we have here, is a failure to communicate." - Cool Hand Luke
The examples don't mean anything. The four factor analysis is what is used to determine if a use is a fair use or not. It is possible to have news reporting, for example, that is not fair use, and cases along those lines are well known.
With regards to the four factors, you have to consider all of them, although fair use is not a simple matter of adding them up; they have differing weights depending on the circumstances involved.
Here, 1) the use is commercial and non-transformative, but does seem to have a significant research aspect to it. I'd call this one largely in favor of authors. 2) The works are both factual and creative, coming out solidly in favor of authors. 3) Google is copying the works in their entirety so as to have them in their database. That users might only see one small excerpt is irrelevant to the reproduction infringement; that's a distribution infringement. As everything is being copied, that's very bad. As for the distribution later, it is more likely that it will involve the important parts of the works than the unimportant parts. This too weighs heavily against Google. 4) It is utterly irrelevant whether a fair use has beneficial impacts on copyright holders; we're only interested in the harm involved. While it doesn't seem as though there would be a great deal of harm, alternatives that involve the copyright holders licensing these materials to Google are likely to be an issue that goes against this project, rather like Texaco.
All in all, I think this is dicey at best. It's certainly not a sure fair use.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
IANAL,l #howmuch was probably written by them and it says:
but http://www.copyright.gov/help/faq/faq-fairuse.htm
From this I can see many places were Google is going to have a tough time are arguing that their use is fair. I suspect that they'll fall back to just doing books they get permission for. I expect that many publishers will flock to send them lists of works to add to their indexes.
While I accept that Google doesn't show much of the copyrighted work on one page, they are really publishing much of the work within the Google site. I can imagine a program being written to query google over and over again to reverse engineer a full work.
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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.
You appear to be mistaken. Google considers all books published since 1922 copyrighted. Excerpts, not whole works, of copyrighted works will appear with neither ads nor sales links. Copyright holders may opt in to ads and sales links and share revenue.
While I accept that Google doesn't show much of the copyrighted work on one page, they are really publishing much of the work within the Google site. I can imagine a program being written to query google over and over again to reverse engineer a full work.
That method will not work according to Google in this article:
"Anybody who's clever enough can download the entire book," Hull said. Not true, said Jim Gerber, director of content partnerships for Google. "Martin Heidegger On The Way," for example, was submitted to Google by the publisher. Under those circumstances, people would only be allowed to see a maximum of 20 percent of the book, and a percentage of random pages are blocked completely.
And this link (PDF) in the blog response explains how Google's program is probably going to be allowed to proceed.
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?
Law.com is reporting that MP3.com has filed a malpractice lawsuit again Cooley Godward, a law firm, alleging that it was responsible for allowing MP3.com to launch and subsequently be sued for copyright infringement by giving bad advice on the legality of My.MP3.Com ( MP3.com Sues Cooley Over Legal Advice ). The charges are quite loaded, alleging that Cooley was basically inept their legal analysis of fair use and other copyright doctrines, and perhaps even misrepresented to MP3.com about expert testimony the Cooley firm had secured.
This isn't a small lawsuit either. MP3.com wants $175 million.
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So "fair use" isn't avoidable -- it's part of the entire package. If you want to use the restrictions of copyright on your works, you need to allow for fair use of your works as well. You can't pick and choose.
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!
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.
Accountability on the heads of the powerful.
Power in the hands of the accountable.
Headline: 'Authors' Guild sues library for lending books to third-party'.
Somehow I can't see that attracting anything resembling good publicity.
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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 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.
Quoting an entire book is not fair use. Indeed. I'm going to use your work without permission in a commercial business for selling ads, until you tell me not to.
That isn't ethical.
For over a decade people on the net have complained about having to opt out rather than in. Whether it is spam, realplayer taking control of your
But now we're being told it is OK to have to opt out of someone using your work for commercial gain without permission, and it's OK to bundle a toolbar in with an unrelated VPN client.
Google are the new billionare bully on the block. Amazon are doing equally cool things with book searchs, only are doing them with the author's permission, why can't google be as equally professionally courteous?
It has become appallingly obvious that our technology has exceeded our humanity. --Albert Einstein
Apparently the dictionary contains the contents of thousands of books, and they just rearrange a couple words. I think we should all get together and start a class action law suite against the dictionaries of the world for illegally redistributing our work. While we're at it, lets sue them for slander. They called me a "dumb fuck bitch who eats babies on friday mornings". They were a little tricky about saying it, again some of the words were mixed up in different places, but we all know what they meant.
Google... pfft, its dictionaries we need to worry about.
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First off, while it is used as such in casual speech, 'copyright' is not a verb in the legal sense. You cannot copyright something. Copyright is a noun. It is something you own. Like physical objects, copyrights can be bought and sold.
Second, you do not have to do anything to own copyright on something you create. From the moment you create an original work, you own the copyright for that work. If you do not register your copyright, it might be harder to defend it, but you still own that copyright. So, publishers do not agree to provide copies for fair use -- they are forced to do so in much the same way that you are forced to pay taxes or not kill your neighbor.
On the last point, however, we have a common understanding. If it is ruled that Google's use is fair (which is the crux of the issue), then Google is under no obligation to allow for opt-outs. It would be done as a courtesy to keep the peace, but they wouldn't have to do it. On the other hand, it may help their case -- I am not quite sure how copyright works, but in the case of trademarks, you lose your trademark if you do not actively defend it. By providing a simple way to protect one's copyright, Google may be creating something of an escape clause for themselves.
Rhapsody in Numbers
Actually, my understanding of what Google is claiming:
d f)
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.p
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.
If you do not register your copyright, it might be harder to defend it, but you still own that copyright.
You are also more limited in the damages that you can sue for under copyright law. Use of an unregistered copyright can be pursued for (IIRC) actual damages only, whereas a registered copyright can be pursued for treble damages.
You can never go home again... but I guess you can shop there.
It's common in evaluating fair use defenses these days to apply the "four purposes" test:
(1) Effect on the market value of the work. Google can probably effectively argue that their use of the works does not adversely affect their sales. Only one sale was lost (selling the book to Google, since they borrowed and copied it rather than copying books they already owned copies of), and if anything, having the work indexed will increase the number of people exposed to the work's existence.
(2) Amount and substantiability of the work used. Google could get in trouble here, because even if they only reveal there copy a few words at a time, they copied the whole thing, and are redistributing the whole thing, if a few words at a time. There was nothing in the work that Google did not copy.
(3) Nature of the copyrighted work. The more creative a work, the smaller the range of uses considered fair use. A mere database is inelligible for copyright, and a reference work that conveys primarily factual information is easier to use fairly than a work of creative fiction. This could get hairy. One the one hand, many of the works Google proposes to copy are purely creative works. On the other, they are using them not for their creative content, but purely as data. If they can convince the court that because they have used the works as a database, and not as creative works, they have used them fairly, they have a chance. If the court sees the works principally as creative works though, this is a strike against Google.
(4) Nature of the use. Google is using the works commercially, even if they aren't getting paid. This is a strike against Google, though probably not an overriding one. However, to really win on this point, they need to make the case that putting all these books together in a big database is "transformative," and this is a hard point for them to make. While the books in the database can be used in a fashion they couldn't be used while not in the database, their appearance in that database is not transformative insofar as seeing the quote from the database adds little context to the work. It is not transformative in the sense that parody, criticism, scholarly research, etc., are transformative.
In my opinion, Google has a good fair use defense only if they can convince the court to distinguish the content of the works as creative works from the content as data, and then say they copied only the data, without infringing the creative work. It is not at all certain to me that the court would agree with such an interpretation of the law. If this makes it to trial, it is my opinion that Google faces an uphill battle.
No, that is NOT what Google is doing. From the referenced link:
You don't have to be a lawyer to understand that this certainly falls within Fair Use under U.S. copyright law.
"Anyone that has ever gotten an idea based on any of my work and done something better with it-good for you."--J.Carmack
"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.
The world's only surviving livewriter.
Here is the question I cannot get around:
It would appear that they cannot. However, nowadays most copyright infingement claims have to do with distribution and not copying. On the Internet, this is especially true since copies are required for transmission and display. Every website you view, for instance, is copied by several ISPs as it gets to you. Also, the RIAA does not seem to sue people for having songs on their hard drive. They tend to sue people for allowing other people to access those songs on their hard drives.
Given all that, I think the real question is:
If the answer is yes, Google will lose. If the answer is no, everybody will win.
All data is speech. All speech is Free.
I am, of course, not a lawyer, but I know a bit about copyright law.
Unfortunately, I replied to a previous post before getting to yours, so I will have to repeat myself somewhat. On the other hand, since you are a lawyer, it will be easier to summarise my point as you are already familiar with the issues involved.
First, let me say that although I agree with your legal assessment, I disagree with your moral assessment. Whether or not Google is going to profit by its actions is irrelevant. The fact that they are going to digitize so many books should be applauded. What they have already done would take publicly funded programs decades or centuries (if it were to happen at all). If you do not believe me, just take a look at Project Gutenberg. It took them from 1970 to 2001 or 2002 to scan a mere 10,000 books. The public library systems of the world have scanned zero or close to zero (considering the number of works in the public domain, you should be asking yourself if the public libraries are doing their job at all). Google is going to manage millions in a few years. This is a good thing, whether or not you like Google personally.
Now, on to the legal issues. Technically, Google is in massive violation of copyright. Of that, there can be no question. The question is the relevancy and enforcability of those provisions in copyright law.
Technically, by the fact that you are viewing this comment, you are violating my copyrights. I have written this comment. It is stored in a fixed and tangible form. You have copied it into your computer's memory (Mai v. Peak) to view it. I have not given you written permission to view it (which, legally, is the only kind of permission that matters). In the mean time, you have also created infringers of all of the intermediary ISPs between yourself and Slashdot, so you are also liable for contributory infringement. I could sue you and win.
Why does this not happen every day? It does not happen because society has already accepted that these forms of copying are acceptable. Call them fair use. Call them your right to access the materials. Call these forms of copying whatever you want. No matter how you look at it, the Internet itself is responsible for massive (technical) copyright infringement. In fact, if copyight were enforced as the lawmakers wrote it, you could not even use the web without calling every admin and asking for a written contract before you accessed that given site.
So, the question, as I just put it is:
As I pointed out in my earlier post, the RIAA, the current, undisputed king of copyright lawsuits does not even sue for copying. They sue for distribution. If they really wanted to, they could sue anybody with MP3s of any music over which their sponsors had rights. In fact, they could even sue anybody using a CD player because the player has to load the data into memory and convert it into an analog signal before a given person can listen to it. From the standpoint of copyright law, then, it is impossible to even listen to music without violating copyright.
In such an age, how can Google be taken to task for violating copyright in the same way that everyone does?
All data is speech. All speech is Free.
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.