Google is the world’s largest Internet search engine–but the Internet apparently does not contain enough content to satisfy its appetite. To provide ever-greater searchable databases for Google users, the so-called Google Print program will make available the entire collections of several vast libraries, including the New York Public Library and the libraries of Harvard, Stanford, Oxford, and the University of Michigan. Internet visionaries may be celebrating, but authors, publishers, and other copyright-owners are justifiably concerned about this quantum leap.

Google’s new Google Print program goes far beyond Amazon’s Look Inside the Book and Search Inside the Book features. Both Google and Amazon offer to enter into contracts with publishers for the right to scan and post the content of published books in a searchable form [see “Danger! Amazon’s Inside the Book Programs Pose Legal Risks for Publishers,” June 2004]. Now, however, Google is going directly to libraries, scanning all the books in their collections, and making the whole database available for searches.

Google is mindful of the fact that much of what is contained in the libraries is protected under copyright. “Google respects the rights of copyright holders and the tremendous creative efforts of authors,” according to its official announcement, “which is why we will only allow users to view the full texts of books that are in the public domain.”

What about books that are not in the public domain? Google has adopted a policy of restricting search results to “bibliographic information and small text snippets” from books still under copyright, and promises that “these pages will include ‘Buy this Book’ links to booksellers.” Thus, Google says, “the addition of these titles and information to our search results will make Google Print even more useful for users, ultimately driving more traffic to the books that [Google Print participants] have included in the program.”

Google’s intentions may be good, but it is not yet clear whether Google is pushing the envelope of the digital revolution–”a great leap forward for access to information,” as John Berry put it in Library Journal, “a paradigm shift in our time”–or engaging in copyright infringement on an unprecedented scale.

In or Out of Copyright?

The books to be scanned and made available for searching on Google will include millions that Google describes as “rare, out of print, or generally unavailable outside the library system.” But the fact that a book may fall into one or more of these categories does not mean that it is no longer protected under copyright. Indeed, a decision will need to be made on a case-by-case basis by Google or its “library partners” as to whether any particular book is still protected by copyright.

For example, the fact that a book is out of print does not necessarily mean that it is out of copyright. Indeed, tens of thousands of titles that are no longer being actively published will remain under copyright for many decades to come. Similarly, the fact that a book is rare and hard to find has nothing whatsoever to do with its copyright status. For each such book, the copyright status may depend on the date and place of first publication; the copyright laws in effect at the time of first publication and thereafter; whether the author is still alive and, if not, when he or she died; and whether the author or publisher complied with the complex legal requirements that have been in effect at various times over the last century or so.

The task of determining whether a book has passed out of copyright and into the public domain can be expensive, time consuming, and sometimes, as a practical matter, nearly impossible. A book may be out of copyright in one country but still protected in another country–and the Internet, with its global reach, will be accessible in both places. And, even if it is confirmed that a book is still protected by copyright, it is sometimes impossible to find the heirs of a long-dead author–or the successors of a long-defunct publisher–whose permission may still be needed to scan and post the book.

The Perils of Fair Use

If a book is protected under copyright, Google has apparently decided that making “bibliographic information” and “snippets of text” available on the Internet falls under the so-called Fair Use Doctrine. This doctrine says that certain limited uses of a copyrighted work–including the copying of a small portion of the work for purposes of “criticism, comment, news reporting, teaching, scholarship or research”–do not amount to copyright infringement. If Google is correct, then no formal permission would be required to make such uses of a book even if it is still protected by copyright.

Strictly speaking, however, Fair Use is not an affirmative right. Rather, it is a defense that can be raised if and when a copyright owner sues someone for infringement. A lawsuit would determine, among other things, whether the various tests under the Fair Use Doctrine applied to a particular use of a particular book. Only then would the person who relied on the Fair Use Doctrine find out whether the doctrine applied, and it is the judge or jury who would decide who won and who lost.

As a practical matter, of course, authors and publishers always rely on the Fair Use Doctrine when making use of quoted material in a published work, and rarely are any of them called upon to defend their decisions in a lawsuit. But the sheer scale of copying by Google raises the risk that some vigilant copyright owner may test Google by challenging the use of “snippets.”

Google may be encouraged by a few recent cases that have struggled to define what constitutes Fair Use in cyberspace and digital media. For example, it has been argued that a search engine that retrieves “thumbnail” images of copyrighted photographs and other works of art from various sites on the Internet is protected under the Fair Use Doctrine when the images serve only to guide the user back to the copyright owner to purchase an authorized copy. But Google must take less encouragement from recent litigation over the “sampling” of music, in which the use of even unrecognizable “snippets” has been held to fall beyond the scope of Fair Use.

A more subtle legal question focuses on the scanning and digitizing of an entire book for posting on a searchable database. Even if the search results are limited to bibliographic information and “snippets,” the fact remains that the entire work is first copied and reproduced on Google’s servers. And Google may be called upon to make a case explaining why the digitization of thousands (and perhaps millions) of copyrighted titles in their entirety without formal permission from the copyright owners is, in fact, Fair Use.

Winners and Losers

To its credit, Google is reaching out to authors and publishers for formal permission to scan and post their books in Google Print. If permission is granted, of course, no question of copyright infringement or Fair Use will arise. But some critics of the library initiative charge that it was “designed to push publishers into joining the Google Print program.” And some librarians are worrying out loud that the online availability of entire collections from several major libraries augurs the end of brick-and-mortar libraries as we know them. Whether or not Google is put to its proof on the copyright issues, there will be both winners and losers in the brave new world of Google Print.

Jonathan Kirsch, an attorney in Los Angeles specializing in copyright, trademark, and publishing law, is general counsel for PMA. He is the author of, among other titles, Kirsch’s Handbook of Publishing Law and Kirsch’s Guide to the Book Contract (Acrobat Books), which will be reissued as a single updated and expanded volume by Silman-James Press in 2005. He can be reached at jk@jonathankirsch.com.