What’s at Stake in the Google
by Lee Wilson
Google’s announcement that it
planned to let users search books from libraries throughout the world was not
met with joy in the publishing industry. In fact, it gave rise to lawsuits from
the Authors Guild and the Association of American Publishers, which see a need
to protect authors and publishers from unlawful use of their copyrights. This
article examines the issues raised by Google’s plan and the lawsuits that seek
to stop it.
The “Exclusive Right”
The copyright law of the United
States has its origin in a section of the original, unamended Constitution.
Article I, Section 8, Clause 8 of the main body of the Constitution gives
Congress the power “to Promote the Progress of Science and useful Arts, by
securing, for limited Times to Authors and Inventors, the exclusive Right to
their respective Writings and Discoveries.”
This language is the genesis of
our copyright statute (and our patent statute). Inherent in it is the idea that
creators will expend the energy and time to bring works of art and imagination
to life because they know they will be rewarded for their efforts by being the
only ones able to control and profit from their works for a period of time.
Also inherent in the constitutional language is the idea that society
ultimately benefits from the privileges granted to creators because eventually
their sole control of their works expires and those works become available for
use by anyone.
Our copyright statute gives copyright
creators—and their successors, copyright owners—exclusive rights in
their copyrighted works. With a few narrow exceptions, only the person who
created a copyrighted work—or someone to whom the creator has sold the
copyright in the work or given permission to use the work—is legally
permitted to reproduce the work, to prepare alternate or “derivative” versions
of it, to distribute and sell copies, and to perform or display it publicly.
Any unauthorized exercise of any of these rights is copyright infringement and
is actionable in federal court, which is where the AAP and the Authors Guild
have sued Google.
What Google Plans
Google’s plan is expansive and
simple: Google wants to make it possible for Google Library users to conduct
electronic searches of the entire texts of all the books housed in large
libraries whose collections it has contracted to scan, even books that are
still protected by copyright. (Any book whose copyright protection has expired
is now a public-domain work, available for use by anyone, including Google.)
Google didn’t ask permission from
anybody before developing this plan. It simply assumed, apparently, that its
projected uses of copyrighted books were a fair use of those books, akin to the
sort of uses that are possible with books in a physical library. In my opinion,
however, Google’s announced plans exceed fair use in several alarming ways. If
Google is permitted to carry out its plans, the right of copyright owners to
control their works will be eroded drastically and perhaps irreparably.
Basically, the arguments that
publishers and authors have with the proposed Google Library project boil down
to this: Google plans to copy thousands of books from several large libraries,
to store the entire texts of these books electronically, and to make it
possible for Google users to search the books through Google’s search service.
Everybody thinks it’s a fine idea to include public-domain books in the Google
Library effort. The problem is that Google’s announced plans also include books
that are still protected by copyright.
Most authors and publishers
believe that what Google is planning is wholesale copyright infringement.
Google says that it will simply be creating, in effect, a large, virtual card
catalog and that what it plans will simply be a fair use of the copyrights in
the copyright-protected books it will copy.
What Fair Use Is
But would Google’s use of
copyrighted works simply be fair use? The best available help for deciding that
question is found in the U.S. copyright statute. Section 107 enumerates the
factors that courts must consider in determining whether a use of a copyrighted
work is a fair use. Here is that section in its entirety, with my bracketed
Limitations on exclusive rights: Fair use
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
educational, research, criticism, and news reporting uses are almost always
fair. Commercial uses, such as uses in advertising, are seldom fair uses.]
2. The nature of the
uses of informational works are considerably broader than permissible uses of
creative works. However, the courts have yet to permit the fair-use defense to
infringement in a case involving an unpublished work, whose private nature is
3. The amount and
substantiality of the portion used in relation to the copyrighted work as a
is quantitative and qualitative—did you quote the twelve-page climactic
scene of a mystery novel, thereby disclosing the identity of the killer, or did
you quote only a three-paragraph section that describes the city where the
4. The effect of the use
upon the potential market for or value of the copyrighted work
evaluation is often determinative in a court’s decision as to whether the use
constitutes infringement. It is undoubtedly the most important of the four
factors. If the market for the copyrighted work is significantly diminished
because of the purported fair use, then it is not a fair use. Fewer readers may
want to buy a book if its most sensational and newsworthy sections have been
previously published in a magazine. A related factor to be considered is the
effect of the purported fair use on any of the rights in the copyright of the
work. If, without permission, one person writes and sells a screenplay based on
another person’s copyrighted novel, the right to prepare and sell a screen
adaptation of the novel may have been lost to the author of that novel.]
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.
How Google Rates on the
Considering the Google Library
plan in light of these four statutory factors for judging fair use leads
inevitably to a determination that Google’s plans would not constitute a fair
use of copyright-protected books.
purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes
In published statements, Google
has emphasized the fact that Google Library would be a boon to students and
scholars, allowing them, in effect, access to a mega-library from any computer.
However, the purpose and character
of the use of the works that would be available through Google Library would
not be a nonprofit educational use. Educational, yes. Nonprofit, no. Google
plans Google Library as a commercial venture, even if it is free to the user.
Google Library will sell advertising on its search pages. Google will greatly
increase its Internet profile through the Google Library project, which will
enhance the enormous value of its internationally famous trademark. The
copyrighted books that users will be able to access through Google Library
certainly will contribute to both these profit centers for Google. But Google
does not plan to compensate copyright holders for the use of their books.
nature of the copyrighted work
Permissible uses of informational
works are considerably broader than permissible uses of creative works, but
this distinction is relatively unimportant here since Google proposes to copy
and make available the entirety of all sorts of books, both creative and
informational, albeit making them available only in small bites. Since Google
proposes to use all of every work it copies, this factor also argues against a
finding of fair use.
amount and substantiality of the portion used in relation to the copyrighted
work as a whole
Again, there is no need to argue
about how much Google can safely use of a copyrighted book since Google Library
would use all of every book copied.
effect of the use upon the potential market for or value of the copyrighted
Would Google Library hurt the
market for the copyright-protected books it includes? The answer is not
obvious. Some have argued that, by offering only “tastes” of included books to
its users, it might actually create a desire for entire works and increase book
sales. This is possible.
It is at least equally possible
that readers and researchers who might otherwise buy physical copies of those
books will find that what Google Library makes available meets their needs.
Clues in the House Report
The copyright statute does not
contain firm answers to most fair-use questions, but courts often decide cases
by drawing conclusions about the intent of legislators from reading statutory
language. Some additional guidance about what our lawmakers intended the
fair-use exception to copyright infringement to be appears in the House Report
that accompanied the 1976 Copyright Act.
This report illustrates the scope
of the fair-use section of the statute with several examples of fair use that
do not fit the Google situation:
[Q]uotation of excerpts in
a review or criticism for purposes of illustration or comment; quotation of
short passages in a scholarly or technical work, for illustration or
clarification of the author’s observations; use in a parody of some of the
content of the work parodied; summary of an address or article, with brief
quotations, in a news report; reproduction by a library of a portion of a work
to replace part of a damaged copy; reproduction by a teacher or student of a
small part of a work to illustrate a lesson; reproduction of a work in
legislative or judicial proceedings or reports; incidental and fortuitous
reproduction, in a newsreel or broadcast, of a work located in the scene of an
event being reported.
However, we can conclude from this
language that legislators intended the fair-use exception to copyright
infringement to be narrow. Since fair use even for libraries and teachers means
reproducing only portions of works for limited audiences and for totally
noncommercial purposes, it seems unlikely that reproducing and storing entire
works and subsequently making them available to millions of people for
commercial purposes would qualify as fair use.
In light of the four statutory
factors used to judge fair use of copyright, as well as the intentions of the
legislators working on the copyright statute and the simple principles of fair
play, it seems clear that Google’s plans, as announced, for Google Library
would transgress the rights of copyright owners.
These are the unarguable results
of Google’s plans:
· Unauthorized copies of entire
· Which are offered in various forms
· Which, arguably, cannibalizes
sales of the scanned books
· Without compensation to copyright
· But with financial benefit to
Sounds like copyright infringement
What about Google’s announcement
that it would exclude works from Google Library if their authors request
exclusion? This is almost the reverse of the traditional copyright-licensing
scenario, where a user approaches a copyright owner for permission to use the
copyright owner’s work, and the copyright owner can either grant or deny the
permission, for any reason, no matter whether the proposed use is a good one or
a bad one.
As for the tired argument of
people who want free (as in “I didn’t pay for it”) access to copyrighted
works—“But I need/want this book/song/photo and you’re getting in my way
by making me buy it from you rather than downloading it from the
Internet”—that works only if we want to live in a society in which no one
creates any books, songs, photos, music, poems, paintings, or any other product
of the imagination. No fan of America’s biggest export—its popular
Google Library, as presently
proposed, would be a big step down the slippery slope toward the extinction of
copyright. Which isn’t what the Framers had in mind when they sought “to
Promote the Progress of Science and useful Arts, by securing, for limited Times
to Authors and Inventors, the exclusive Right to their respective Writings and
Lawyer Lee Wilson has
written several books on intellectual-property law, including <span
class=8StoneSans>The Copyright Guide: A Friendly
Guide to Protecting and Profiting from Copyrights, and <span
class=8StoneSans>Fair Use, Free Use, and Use By
Permission: How to Handle Copyrights in All Media, both published
by Allworth Press. She lives and works in Nashville.