Google Treading on Thin Ice?

I really admire the innovation and Google, and generally, think their stuff is great ... I can admit that.  Recently, Google's initiative, Google Print, is getting into some hot water with a lawsuit from the Authors Guild.  I have to side with the Guild on this one ... Google Print is a great idea, but it's violating copyright law.

ABC News and The Christian Science Monitor posted articles about the lawsuit, and it's easy to see two different sides to the story.  Even Susan Wojcicki (VP of Product Management at Google) blogged about the issue.  (As an aside, it's great that she blogged about it -- kudos.)

So why is this wrong?  I don't doubt the "coolness" of the effort, or how it may help sales of hard-to-find books, etc.  What I disagree with is their interpretation of copyright law.  According to Susan, Google is fully "consistent with the fair use doctrine" and "principles underlying copyright law itself."  (That last one made me laugh, linking to the Constitution.)  More on fair use in a moment.

What I also find inconsistent is her statement: "...especially since any copyright holder can exclude their books from the program."  The CSM article also refers to a similar response, allowing the copyright holder to exclude the content from the project.

Copyright law allows for the specific rights of reproduction, distribution, and display (among others).  I think Google Print is a novel idea: it certainly will make books easier to find, and will no doubt increase sales for hard-to-find books.  I think it's good content to have on the internet.  But, the right to determine how copyrighted work is reproduced, distributed, and displayed is completely in the owner's hands, and isn't for Google (or anyone else) to decide or interpret.  The onus should not be on the owner to opt out ... the owner should explicitly opt in.

So the question comes down to whether or not it's fair use: I guess the courts will need to decide that.  Fair use is generally allowed for review or parody (as Susan points out), but I don't see how that applies here.  Review may be a bit of a stretch; when I hear review, I think of Ebert and Roper discussing the latest movies.

I can contradict myself by saying, "Well, what about search engines that index and cache your website?  Isn't that violating copyright law?  Or, what about Google Images, cataloging all the images on the internet?  Is this any different than indexing books?"  That's a tough question, and has already been tried in this case where it was ruled that indexing images, in particular, is generally considered fair use.

One of the problems we're facing is that the "digital age" is changing the way we think about intellectual property.  In my self-contradiction above, I feel there's a difference between a website (and the images I place on it) and a book that is published.  I don't know how to clearly define that difference; I do understand that the context of the internet is somehow different, and I expect that my pages are generally public.  I also know (as most people should, if they run a website) I can simply use a robots.txt file to exclude content from search engines.  But, this doesn't answer the question.

Although I realize the option to allow copyright holders to opt out is likely a gesture of good faith to appease enough people from filing suit, it seems to contradict the argument of fair use.  So I say: stand firm on the fair use claim, Google, and roll full steam ahead.  No doubt it will cause upheaval, and with the twisted knot of IP (intellectual property, not internet protocol) on the internet, maybe this will set a much needed precedent.  But, as I predict, be prepared to lose this one.

Comments (1) -

James Byrd
James Byrd
10/2/2005 2:42:43 PM #

Hmmm.

As a publisher and author, this story really bothers me. The whole point of a copyright is that it protects your material from being duplicated without authorization. The concept of authorization implies an "opt-in" procedure, not an "opt-out" procedure. If opt-out were the rule, that would make it my problem to find everyone who is using my content and then opt-out if I didn't want them to use it. The very idea is laughable.

I'm not familiar with the details of how Google is selecting the material they plan to make available, but I don't possibly see how they could expect to get away with stealing other people's content without the permission of the author. And, in the publishing world, duplication is stealing.

Of course, we do occasionally find people who ARE stealing our content, copyright or no. We try to contact them first and request that they take down the offending material. If that doesn't work, we contact their hosting company and report the violation. You'd be surprised at how quickly a hosting company will shut someone down for illegal activity on the site.

Just today, in fact, my company had to contact a site (foreverGeek.com) that took an article I wrote and published it on their site without my permission. To their credit, they retained my bio and a link to our corporate Web site, but still they were illegally publishing my material to generate traffic for their own site.

Search engine indexing seems reasonable to me because the index does not contain the content, it contains a reference to the content. Conceptually, it is comparable to a footnote reference in a book. The search engines usually include a small snippet of content as well, but you can compare that to quoted text in a book or article. The main thing is that the reference is attributed to the origin, and the benefits of someone pursuing the link acrue to the owner of the material.

On the other hand, those sites that let you see historic copies of other sites are probably violating copyright. Even though the material's origin is clearly attributed, they show a full copy of the content. This is just like having someone else frame your site. Sure, they are using your site to display the content along with your header and footer (and even your copyright notice!), but they are effectively using your material on their site without authorization. It's a sleazy thing to do.

I too am with the Author's Guild on this one. Electronic publishing is still publishing, and it should be subject to the same copyright laws that protect intellectual property in other mediums.

Google isn't quite big enough to start writing its own laws. Yet.

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