ASSOCIATES (2006, March, v. 12, no. 3) - associates.ucr.edu

*Is GOOGLE Being a Fair Use User?*

by

Bessie Mayes
Technical Service Senior Advisor/Cartographic Consultant
SPAWAR Systems Center, Pacific
bessie.mayes@navy.mil

Some technology revolutions can be very subtle in the beginning. Perhaps you have noticed that the number of computer commercials outnumber commercials for television products, with the exception of the Super Bowl season of course. The technology markets are driven by the consumer’s desire for convenience, relaxation, and saving time. There are many new technological surprises these days to accommodate those masses too. For instance, Sony Corporation has a new product that may change the way we read books in the future. You are familiar already of course with email, e-journals, and e-commerce, but are you aware of e-paper? Sony’s new device will allow the user to read up to eighty books on a device they call the Sony Reader. The company developed this reader last year, and is now marketing it to the public. The device weights only 9 ounces, and looks just like a book with a LCD screen. The Sony Reader is adjustable, meaning you can manipulate fonts, and is easy to carry around. Just think, instead of thumbing through a paper copy of your favorite novel, you now have the luxury of pressing a button to flip to the next page. However, my question after reading about this new item was how could I acquire a digital book that could interface with this device and how much would I have to pay? What if I told you that someday in the future, you may be able to download your favorite book into your Sony Reader directly from a library’s website?

The project began with Google back in early 2004, but few knew about it, aside from the participants. Google arranged with the University of Michigan, Harvard University, Stanford University, the New York Public Library, and Oxford University to digitize selected sections of their library collections. The agreements varied from library to library. The entire book was to be scanned and archived for two locations. One digital copy of the book would remain under the library’s jurisdiction, while the other version of the full text would reside in Google’s Book Search engine. The institutions differed on which books would be digitized. For instance, The New York Public Library decided that only public domain titles, such as government and non-copyrighted materials, could have full text digitations. Nevertheless, this brought up serious issues for the libraries and Google, causing great concern among the publishers and publishing associations. The question arose, who had legal rights to the book and their contents, the publishing houses and their authors, or the Libraries and Google?

Remember that new way to view books that Sony is now marketing? Well, the book that the CEO of Sony used for his product demonstration was a copy of a currently popular book. The book was published in 2003. But how did the CEO of Sony acquire the permissions to download or digitize that copy of a published book that is near the top of the bestselling list? By authorized permission from the book’s publisher and by paying a fee based on a license agreement. The copyright belonged to the publishing firm after first paying for that right by purchasing the book from the author. The author had to give up his rights to the book and its content once it was published by a book publisher. The copyright no longer resided with the author, but now was held by the publishing firm. So understandably, it did not take long for publishing houses to question Google on this new venture with the libraries. The publishers and their associations had many questions. One in particular seemed to be the focus of all concerned, including the libraries. How would Google handle the copyright issues for the books being digitized? Did Google not understand that basic copyright laws forbid reproduction in any copyrighted materials without explicit permission or authorization from the owner of that copyright? How could such a large corporate company infringe on their rights to the book in such a blatant fashion? Didn’t Google know that they could be sued for such infractions under the Fair Use Copyright law? Google linked an analysis written by Jonathan Band, not affiliated with either parties in this debate, that addresses these questions. The link can be found under FAQ on Google’s Book Search website. (http://www.policybandwidth.com/doc/googleprint.pdf)

Google’s basic premise was that it could scan the full text holdings of these libraries, but only the “snippets” of the texts would be displayed for in-copyrighted books. “Snippets” included the searched terms within the text and only a slight view of the text surrounding those terms. The three snippet views are due to possible duplication of titles from various library collections. Google also offered a very sketchy card catalog-CIP version of the book, giving the author, title, ISBN which each book was required to have in order to be selected for digitization, very similar to the way OCLC Inc. displays their data using basic Dublin Core. Google’s Book Search also shows “Sample pages” displays, which mimics Amazon’s method of display. Google insisted that only these three views would be available to the users for viewing on the Book Search project. As with Amazon sites, the copy, print, save, and other editing functions are blocked. After selecting the item, the user would be directed to a library near by, or purchase it from a book seller listed as other resources. According to Google, these publishers do not pay to have their links appear on Book Search. As for full text, which Google has archived, there is full text access to books which the libraries involved and Google consider to be out of copyright, and/or in the public domain. Yet, on what assumption is Google basis that these safeguards comply with the Fair Use Copyright laws? Attorneys are discussing one section in particular that contains four categories in their lawsuits against Google.

Title 17 of the United States Code, volume 92: Section 107. Limitations on exclusive rights: Fair Use statues states:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
       (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
       (2) the nature of the copyrighted work;
       (3) the 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

These four factors are the focus of infringement lawsuits against Google by some publishers and associations that represent them.

Peter Givler, Executive Director of the Association of American University Presses, wrote Google on May 20, 2005 for explanations on some aspects of Book Search. He asked Google whether “it is fair use to make copies of every copyrighted work in even one major library, let alone three of them...?” Givler also wrote, “Courts have never recognized a fair use claim of that magnitude. What is your argument that they should do so now?” Givler also questioned a very important part of the project that allowed the Google library to show “snippets” of the books in the search results.

In September 2005, the Authors Guild and associations representing publishers and authors filed a suit against Google claiming “massive copyright infringements.” One could surmise that the Guild believed that all four factors in the Fair Use law applied to Google, and wanted to prove that Google had illegally infringed on the rights of their clients.

Google however, believes the company has answered these factors and the concerns of those sitting on the sidelines for now, in a number of ways. After reading Google’s frequently asked questions (FAQ) section, I came to some conclusions on how Google is framing a response to the four factors mentioned in section 107 of the law.

(1) Purpose and character of use, commercial or nonprofit: Stanford, Michigan, Oxford, and the New York Public Library are universities and libraries which are nonprofit and educational institutions in intent;

(2) Nature of copyrighted work (published or unpublished): Libraries and universities are places for research and supplies scholarly books for users; whose collections include out of print or non-copyrighted, public domain books or “a work of the United States Government (a work prepared by an officer or employee of the United States Government as part of that person’s official duties); or authorized use by owners of copyright; books published after 1922 treated as copyright-protected; the universities and libraries are providing the personnel to scan the work as government (state or city) workers;

(3) Amount and substantiality of the portion used: Only “snippets,” sample pages, or less then fifty percent of the book which has automated rights management (ARM) capabilities that prevent printing or saving what will be displayed; only the text that surrounds the search terms is shown.

(4) The effect of use on the potential market for the copyrighted work: Google Book Search does not require that linked URL’s pay a fee; Google nor participating libraries or universities receive compensation via Google Book Search; Google does not charge the participants for the search service; audience is similar to audience for books sellers, but service provided by Google to the non profit entities at no cost could be perceived as lacking infringement on market value of sellers and publishers;

Some of Google’s legal reasoning on one of these factors comes from a court case decision reached by the Ninth Circuit Court of Appeals of California in 2003 in the case of Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). According to legal expert Jonathan Band, he sites this case as perhaps an example as to how the lawsuits may be decided based on legal precedent. Here is a brief summary from the opinion by the Ninth Circuit Court of Appeals in San Francisco:

“The citation is 280 F.3d 934 (CA9 2002)

       Owner of copyright images displayed on Internet web sites sued operator of visual search engine, which displayed search results as “thumbnail” pictures, for copyright infringement. The United States District Court for the Central District of California, Gary L. Taylor, j., 77 F.Supp.2d 116, granted summary judgment for search engine operator based on finding of fair use, and owner appealed. On denial of rehearing, and withdrawing and superseding its prior opinion, 280 f.3d 934, the Court of Appeals, T.G. Nelson, Circuit Judge, held that operator’s use of owner’s image as “thumbnail” in its search engine was fair use.”

Both the plaintiff and the defendant won in this case however, when the court found in favor of Arriba Soft Corporation in that the defendant was populating a search engine, and upheld Arriba’s right to allow users access to the image that was owned by Kelly as long as the search engine did not hold the full picture owned by the plaintiff. But, the case was eventually won by Kelly in 2003 in that Arriba had violated other copyright laws against removal of the copyrights caveat against reproduction, thus altering “without authority” the owner’s images which violated the Digital Millennium Copyright Act of 1998, Section 1201 (12). In so doing Arriba violated factor (4) in that removing the caveat caused market harm to the plaintiff. As to “cache,” since Arriba only cached but did not store Kelly’s images, and held them only long enough to edit them, or change the image to a “different nature” or “transformative,” the judges apparently could not find against Arriba using these factors (1) and (4). In so doing, making the point that by the very nature of a search engine itself, the ruling favored Arriba Soft Corp. in its 2002 conclusions. I mention this point because Google “caches” URLs which can be used for further searching.

Other cases (New York Times v. Tasini) come into play to a degree. I spoke with American Library Association Legislative Counsel Miriam M. Nisbet about this case. ALA had filed an amici curiae (friend of the court) brief in support of the authors. The comments after the case ended can be found at http://www.arl.org/INFO/FRN/COPY/TASINIPR.HTML. ALA supported the final 7-2 ruling that favored the position that the authors’ work could not be licensed to electronic databases from print without their permission. But the Second Circuit case which seems to have set a high precedent, American Geophysical Union v. Texaco Inc., also indicates as in Tasini that the “burden of proof on all factors” falls on the defendants in each case, not the owner or plaintiff. Geophysical Union won because Texaco could not prove it had not infringed on the copyrights of Geophysical which involved factor (4) or loss of revenue, for Geophysical (60 F.3d 913, 918 (2d Cir. 1995). This is implied in N.Y Times v. Tasini (Supreme Court U.S. 2001), in that the N.Y. Times had to prove to the Unites States Supreme Court their assumptions that authors which had been previously published in the N.Y. Times, could be reprinted without permission on the newspaper’s web site. The Supreme Court awarded relief to the authors under factor (4). Certainly, with these and other lawsuits in process, the outlook for Google may seem bleak for legal success and their efforts in vain from those who can see no benefit to the project.

It also may appear, to some, that the majority of publishers and publishing associations are not supportive of the Google Book Search project. Yet Google has supportive comments from publishers and authors happy to have an opportunity to refresh the public’s memory about their products. Google has testimonials on its website from publishers that have seen increased traffic to their company websites since signing on with Google. In fact, Google has another project that takes on publishers as “partners.” The project is called Google Book Partners. With this site, publishers with the correct permission and ownership can download hundreds of book titles for users to search on Google. Google allows advertisements to appear so that revenue can be generated, unlike Google’s Book Search project with public institutions. Publishers that join are required to sign a license agreement before their books can be uploaded for users. The Publishers can leave the project at any time, off loading their products if desired. For now, Google only offers book products for both Book Search and Book Partners. Periodicals and other media will be offered at a future date.

Okay, remember that Sony book? That product will have company soon on the market, if not already. Google already has competition in that Yahoo and Microsoft have a partnership in an organization called Open Content Alliance. They too are now in the process of scanning collections of libraries. I am certain they have one eye cast toward the horizon and another looking back at what could happen with Google and the multiple lawsuits against their actions to date. Yet, the question I asked was one that I could not answer myself earlier in this process of discovery. So, a few months ago, I put this question and more to Dan Farley, President of Harcourt Trade Publishers. Mr. Farley explained many aspects to me from a publisher’s point of view that concerned him, and added some very encouraging words at the end of our discussion. He said;

"Our main concerns are intellectual property and the "opt out" approach. This is with regard to works under copyright. There are also issues with the books in the public domain, and...aware of. But the various parties assert they are well intended, [and] I acknowledge the good efforts of Google in regard to public domain work."

When I asked Mr. Farley how he felt about Amazon and how they handled the use of sample pages on their website, he said;

“Amazon has agreements in place with the publishers who do business there.”

I am certain that Dan Farley, as President of an international company under Reed Elsevier, reflects and echoes the concerns of the majority of publishers around the world. Perhaps more so, since Google is now in the process of digitizing books in libraries in France, the United Kingdom, and other countries in Europe. The books will be in their native languages so that their users will have access to the contents of the libraries in their communities, all via Book Search.

Jan Jordan, President and CEO of OCLC was quoted by Barbara Quint of Information Today as saying the Google projects “validated the strategic planning decisions they made 5 years ago that it was 'imperative to weave libraries into the Web and the Web into libraries.'” (www.infotoday.com ). I remember how much OCLC went through to convert from a server environment to a web based platform. Many users dreaded the switch, but OCLC prevailed, training its clients on the new methods and successfully moving ahead technologically to the next phase of company development for its international customer base. This seems to me the best possible scenario for Google, Yahoo, and Microsoft too. With budgets cuts by cities and state governments around the nation, private institutions like Google, Yahoo, and Microsoft can be the catalysis that will help bring libraries closer to meeting the needs of their customer base in providing better services. By offering better technological tools and methods for use, libraries could ensure that the customers would return again and again.

As I have examined each issue among the participants, I have come to some conclusion. Dan Farley, President of Harcourt Trade Publishers ended our conversation by saying, “When all the posturing and positioning settles, solutions will come.” He is correct. As the years have past since Google first introduced these projects, some issues have been mitigated and things have settled down. The Opt-out option is available and does appear on the Google web site. Owners have to provide registered copyrighted books to place in the search engine. The issues in court will be settled in time, but it appears that technology has moved on in this new endeavor by Google and other search engine providers. Google and other competitors are finding a new market niche that will provide revenue to their share holders. In addition and more important, this new project will also benefit researchers, scholars, students, and the public. Book Search, and I dare say Book Partners, are novel inventions that will forever change how we look at how we as employers and employees function at our jobs. This new convenience of accessing the world from our living rooms and home offices does provide a needed and useful service to the communities around the world. It appears to me that libraries all over the world just went digital. And anyone in the world will be able to access information and published works anywhere there is a computer. I have to agree with Jan Jordan, pass the champagne!

Written by Bessie Mayes, 2006. mayesbn@cox.net or bessie.mayes@navy.mil

Miriam M. Nisbet. Legislative Counsel, AMERICAN LIBRARY ASSOCIATION
ARL and ALA Commend the Supreme Court’s Decision in The New York Times vv. Tasini.
http://www.arl.org/INFO/FRN/COPY/TASINIPR.HTML

OITP Technology Policy Brief; The Google Library Project: The Copyright Debate.
Prepared by Jonathan Band. American Library Association.

The Google Print Library Project: A Copyright Analysis. Jonathan Band.
jband@policybandwidth.com

The Google Library Project: Both Sides of the Story. Jonathan Band.
http://www.plagiary.org/Google-Library-Project.pdf

Lesley Ellen Harris, Editor. The Copyright and New Media Law Newsletter. Volume 5, issue 3. The Tasini Case and Libraries.
http://www.copyrightlaws.com/newsreps/nrvo5is3.html
http://www.copyrightlaws.com

Lesley Ellen Harris, Editor. The Copyright and New Media Law Newsletter. E-Commerce: A Primer for Libraries, Archives and Museums. Volume 3, issue 1.
http://www.copyrightlaws.com/newsreps/nrvo3is1.html
http://www.copyrightlaws.com

Lesley Ellen Harris, Editor. The Copyright and New Media Law Newsletter. Are model licenses the answer?
http://www.copyrightlaws.com/articles/armodel.html
http://www.copyrightlaws.com

Lesley Ellen Harris, Editor. The Copyright and New Media Law Newsletter. Getting what you bargained for-essential terms every Librarian should include in a licensing agreement.
http://www.copyrightlaws.com/articles/arlicens.html

Alexander Macgilllivray. Businessweek Online. The University Press Assn.’s Objections. May 23, 2005.
http://www.businessweek.com/bwdaily/dnflash/may2005/nf20050523_9039.htm

John Cox Associates. United Kingdom. Model standard licenses for use by publishers, librarians, and subscription agents for electronic resources.
http://www.licensingmodels.com

Barbara Quint. Information Today. NewsBreaks. Google and Research Libraries Launch Massive Digitization Project.
http://www.infotoday.com/newsbreaks/nb041220-2.shtml

Edward Rothstein. New York Times (appears in San Diego Union Tribune). Sunday, November 20, 2005. Internet sparks new debate over copyright.
http://www.signonsandiego.com/

Tom W. Bell, Professor. Chapman University School of Law. Fair Use vs. Fared Use: The impact of automated rights management on copyright’s Fair Use Doctrine. (1998 North Carolina Law Review; reproduced here with permission.
http://www.tomwbell.com/writings/FullFared.html

Jonathan Sidener and Diane Lindquist. San Diego Union-Tribune. January 23, 2006. e-paper e-merging; New display technology takes a page-make that thousands of pages-from pulp-based predecessors.
http://www.signonsandiego.com/

Burt Helm. BusinessWeek Online. A new page in Google’s book fight. June 22, 2005.
http://www.businessweek.com/technology/content/jun2005/tc20050622_4076_tc119.htm

Stephen H. Wildstrom. BusinessWeek Online. The web hits the stacks. July 14, 2005.
http://www.businessweek.com/technology/content/jul2005/tc2005714_5169_tc081.htm

University of Maryland University College. Copyright and Fair Use in the classroom, on the Internet, and the World Wide Web-UMUC. 1996-2004.
http://www.umuc.edu/library/copy.html

Leslie A. Kelly v. Arriba Soft Corp., et al. Case No. SA CV 99-560 GLT[JW]. United States District Court.
http://pub.bna.com/ptcj/99-560.htm

Kelly v. Arriba Soft Corporation – Wikipedia, (the free encyclopedia).
http://www.en.wikipedia.org/wiki/Kelly_v._Arriga_Soft_Corporation

United States. The Digital Millennium Copyright Act of 1998. U.S. Copyright Office Summary. December 1998. Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998)
www.copyright.gov/legislation/dmca.pdf

United States Copyright Office. Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code. Circular 92.
http://www.copyright.gov/title17/92chap1.html#107

Google Inc. Google Book Search Common Questions. Beta. Google Library Project – An enhanced card catalog of the world’s books.
http://books.google.com/googlebooks/common.html

Google Inc. Partner Program – an online book marketing and sales program.
http://books.google.com/intl/en/googlebooks/publisher.html