Google has embarked on an ambitious project to scan millions of books into an online, searchable database. Many people and organizations object to the project on the grounds that it infringes on these books’ copyrights. These include the Authors Guild and the Association of American Publishers, both of which have filed suit to stop Google from scanning books without their copyright holders’ permission. There are also people and organizations who support Google’s efforts, including Tim O’Reilly, (by extension) O’Reilly Media, and the Electronic Frontier Foundation.
My take is that what Google Print is doing is legal fair use and that Google will prevail in court. Furthermore, what Google is doing is likely to increase book sales rather than decreasing them, and authors and publishers shouldn’t look a gift horse in the mouth.
The crux of the debate is whether what Google is doing constitutes fair use under copyright law. There are actually two different copyright questions to answer. (1) Is the act of scanning the books into an on-line database itself an actionable copyright violation? (2) Is the act of allowing users to search the database and view excerpts from copyrighted works a violation?
I spent some time researching the doctrine of fair use and analyzing for myself whether Google Print fits the bill. When I started my research, I expected that it would confirm my belief that Google Print is not fair use, but by the time I finished, I was convinced of the opposite. Then I discovered this analysis, which is more comprehensive than mine and written by someone far more qualified than I to discuss this. I urge anyone with a serious interest in this issue to read it.
Objectors to Google Print also make a “slippery slope” argument, i.e., even if Google’s initial use of the material is OK, they could in the future choose to use the digitized data inappropriately, and it would be too late for authors to do anything about it. This argument has not had much success in court, nor should it.
Another objection people raise is that the copyright notices of most books explicitly prohibit electronic reproduction in any form, so scanning the books into an on-line repository is ipso facto copyright violation. However, the courts have, in the past, struck down copyright restrictions which discourage publication, fail to protect the property rights of copyright holders, unfairly infringe upon the rights of consumers, or are intended to prohibit fair use.
It seems likely to me that Google will cite the Betamax case in their defense of lawsuits against Google Print. It also seems likely to me that they will prevail.
It’s worth noting that after Sony lost the Betamax case, they and other copyright holders figured out how to make a ton of money from the technology they had asked the courts to ban.
Some additional links on this topic: