September 21, 2005
Google Sued; Books Disappearing
Posted by Mike Madison

They've done it:  the Author's Guild has gone ahead and sued Google over the Google Print program, alleging the threat of copyright infringement on an unprecedented scale.  The relevant part of Google Print would scan the entire contents of several major libraries (including the University of Michigan's), including works still covered by copyright; store the contents on Google servers; and enable full-text searches of the entire database that would return results limited to excerpts of the full books.  In principle, users would be able to get whole books only by going to the libraries themselves, or by buying copies.  Google has offered to permit publishers of copyrighted works to "opt out" of the progam if they object.

Bill Patry posted a thoughtful comment recently about the legitimacy of Google's plan under existing copyright doctrine (he's pretty skeptical of Google's fair use argument).  Eric Goldman has echoed Patry's position, though (it appears) with some reluctance.  On the other side of the debate, Jonathan Band has articulated a straightforward application of the fair use argument [pdf] in Google's defense.

For a variety of reasons, I hope that Google actually fights the lawsuit to an adjudication on the merits.  On the merits of the doctrinal question, I suspect that Bill and Eric are right, though I think that Google has some important arrows in its quiver, and I'd like to hear what an appeals court has to say.  And if it manages to win, Google may be planting the seeds of the destruction of copyright as we know it.  Depending on your point of view, that may not be a bad thing.

More below the fold . . . .

First:  Should Google fight the case?  Absolutely.  From a litigator's and trial lawyer's point of view, this is a case worth fighting.  There's lots of money at stake, and both sides have lots of money to spend on fees.  It's very high profile stuff!  And it doesn't (yet) have a clear storyline.  Right now, it's good guys ("do no evil") v. good guys (hard-working, creative "authors").  Moreover, it isn't very often when a fair use argument gets raised by a big-time, well-financed corporate entity.  Usually fair use is the province of the little guy, who has to rely on the legal kindness of strangers.  Sometimes the little guy wins; usually the little guy loses.  That's not healthy for fair use.  One of the partners at my old firm used to say that sometimes, you have to fight the close ones.  Otherwise, you never win the close ones.

Second: I'd love to see some push back against the premise that Google has misbehaved by going ahead with its plans.  Bill Patry calls it Google's " chutzpadik manner"; the Times repeats the Author's Guild mantra that Google "turned longstanding precedents in copyright law upside down, requiring owners to pre-emptively protect rights rather than requiring a user to gain approval for use of a copyrighted work."  Where does the Copyright Act say that it's a game of Mother-May-I?  The Act says that if Google invades one or more of the exclusive rights of the copyright owner without permission, and without an acceptable defense, then Google suffers the penalties provided for in the Act.  Fair use is a defense provided for in the Act.  Google may turn out to be wrong, but if Google turns out to be right, then it's Erich Segal time:  Fair use means never having to say you're sorry.  This is what courts are for.  It seems to me that the Authors Guild, not Google, is being a little presumptive here.

Third:  This is where the conceptual takes over from the pragmatic.  For me, that's where the game gets especially interesting.  Should we agree so quickly that what Google is doing is all well and good -- even if (if your sympathies lie with the Authors Guild) it violates copyright law?  More information for more people!  All information all the time!  No more locking up information in these restrictive things called (watch for it) "books" and these limited access places called (watch out again) "libraries."  I want to ask this question in a slightly different way:  Will Google Print kill the book? 

Books are really, really important things culturally, particularly in Western culture.  Have been for hundreds of years.  Almost everyone loves books and depends on books.  And books are absolutely central to modern copyright law, both conceptually and doctrinally.  (They're even more important than authors, in my view.  But I'll take on one controversial topic at a time.)  Books are fixed, limited containers of creativity.  Books have beginnings, middles, and ends.  Without books, we wouldn't have "works," and without "works" we wouldn't know how to process questions of incentives and questions of access.  We wouldn't know where to put the author's "moral right," if there is one; we wouldn't know what to refer to when we make "fair use" of a work.  We wouldn't know what to distribute, and distribution of creativity is the ultimate goal of the whole system.

If you expose the creativity without framing it in a book -- and this is what Google proposes to do --  all you have is data.  Data that you can mix and remix and reuse and share in bits (bytes) and pieces and aggregates of new scale and scope.  Data that is everywhere and nowhere, all at once. 

When this happens -- and Google may not do it, but I suspect that in the long run, it will happen -- we'll need to rethink not only the premises of copyright law, but we'll also need to rethink some of our arguments about where culture comes from, where it goes, and what we do with it.  This is the sense in which Google Print may be killing the book.  And if the book dies, copyright as we know it ultimately dies too.  (Note, by the way, how this question tracks what has been happening for the last few years in the music business, and particularly how it tracks the evolution of the concept of the copyrighted "work" in the context of sampling litigation.  When copyright protects individual chords, then copyright really is protecting just data.)  I confess that I have mixed feelings about this, and I haven't come to a conclusion about where my sympathies lie.  Right now I'm looking forward to, or at least hoping for, a good fight.

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» My Comments on Google Print from Technology & Marketing Law Blog ...
"By Eric Goldman I have been thinking a lot about Google Print, Google's plan to scan in and index al ..." [more] (Tracked on September 21, 2005 @ 8:58)
» Google and the Law from The Stalwart ...
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» Google and the Law from The Stalwart ...
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» My Comments on Google Print from Technology & Marketing Law Blog ...
"By Eric Goldman I have been thinking a lot about Google Print, Google's plan to scan in and index al ..." [more] (Tracked on September 21, 2005 @ 19:42)
» Actors Guild Sues Google: Counteracts their own movement from Open Synapse ...
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Comments (9)

1. Posted by Gordon Smith on September 21, 2005 @ 8:21 | Permalink

Thanks for posting this, Mike. This is interesting.

Among other things, I was not aware that Google planned to limit access to copyrighted works, so that users see only a few sentences. I don't know whether you would think this is fair use, but it severely constrains the usefulness of the project.

2. Posted by Eric Goldman on September 21, 2005 @ 8:55 | Permalink

Good post, Mike. However, I disagree strongly with your core premise. I think the risks to Google of seeing this litigation to conclusion are potentially business-altering. It's possible that a court, when presented with the differences between the robotic collection of digital content and the scanning of dead trees content, will not be able to articulate any difference at all. At that point, Google could be faced with not only shutting down its Google Print project, but potentially having a court opining that its core search business is infringing. This is why I think Google should go to an opt-in system and then show the publishers who don't opt-in what they are missing. Eric.

3. Posted by Mike Madison on September 21, 2005 @ 9:07 | Permalink

You're entirely right that it may be difficult to articulate a legal distinction between Google Print and Google's core search functionality. (My post was getting pretty long, and that was a point that I was saving for later.) That said, (a) I think that a court -- even, or perhaps especially, a not-particularly-thoughtful court -- would find one; and (b) I strongly suspect that Google is willing to go to bat on the point. It is indeed a bet-the-company case, but I think that it's a bet that Google both is and should be willing to make.

4. Posted by Mike Madison on September 21, 2005 @ 9:10 | Permalink

The Authors Guild is looking to the intermediate full-text copying as the source of the infringement. The fair use argument is based on a combination of making-limited-content-available-to-users-is-OK (as in Kelly v. ArribaSoft) and intermediate-full-on-copying-necessary-support-legitimate-end-use may be "fair" (as in the computer software reverse engineering cases).

5. Posted by Mark McKenna on September 21, 2005 @ 9:31 | Permalink

Eric and Mike -

I also agree that it would be hard to distinguish Google's core searching function from what it's planning to do with Google Print, but maybe that's exactly what we need (we, meaning the general user population, because it's not necessarily what Google needs) - a court threatening something generally seen as hugely valuable and legitimate under the guise of copyright law. That might be what it takes for Congress to see how copyright law sometimes creates real costs that interfere with progress.

As an aside, I still can't figure out why the plaintiffs think Google Print is bad for them.

6. Posted by Eric Goldman on September 21, 2005 @ 12:12 | Permalink

Mike--I agree with you that Google may very well want to make a stand on its core business, but this isn't the product line or a set of plaintiffs I'd want a judge evaluating to make that decision.
For better or worse, the Perfect 10 litigation may give us a lot more guidance on that issue.

Mark--you're right that most publishers should want to be indexed. Indeed, many have already opted-in. But I don't see how this is legally relevant unless it affects the fair use analysis.

Otherwise, it seems like this is simply a Coase Theorem application--we give the entitlement to one party and let the other side negotiate to vary that entitlement as appropriate. The point is that if Congress has given the entitlement to the publishers (a debatable point, I recognize, but I think they have), then we might simply view this as a matter for private ordering.


7. Posted by Vic Fleischer on September 21, 2005 @ 13:56 | Permalink

Eric, I'm not an IP guy, but I thought the whole point of fair use was to deal with the problem where transaction costs get in the way, making the Coase theorem less helpful. There seem to be high transaction costs here with copyright holders spread around. (Transaction costs would seem to be lower if we are just talking about libraries.)

8. Posted by Stephen C. Carlson on September 21, 2005 @ 14:24 | Permalink

Vic's point about high transaction costs is especially strong when considering Eric suggestions about having publishers opt-in. Many of these books were written before people started putting electronic rights into their contracts. As a result, the publishers might not even have the rights to opt-in with. Imagine the transaction costs of contacting the authors or their heirs...

9. Posted by Eric Goldman on September 21, 2005 @ 15:14 | Permalink

I recognize the Coase Theorem reference makes the discussion a little muddy--sorry.

I don't think high bargaining costs is the only (and maybe not even the principal) justification for fair use. For example, fair use applies to situations where the copyright owner simply won't consent under any circumstance (say, a parody).

My point (and the reason for referencing the Coase Theorem) was a little different. Google wants the publishers to bear the costs of opting-out. The publishers want Google to bear the costs of obtaining an opt-in. Who should bear these costs?

We might debate whether Congress should reallocate the entitlement. I would be thrilled if Congress did so. However, if Congress has already given the entitlement to the publishers, then it's up to Google to bear the costs of procuring consent if it wants to launch the business. It may be that this cost is prohibitive, but plenty of transactions fail for that reason. Eric.

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