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AbstractGooglesannouncement that itwill include in its
search database the full text of books from five ofthe worlds leading research libraries has provokednewspaper editorials, public debates, and two law-suits. Some of this attention can be attributed topublic fascination with any move taken by Google,
one of the most successful companies in the digitaleconomy. The sheer scale of the project and itspossible benefits for research have also captured thepublic imagination. Finally, the controversy overcopyright issues has been fueled by Googles will-ingness to pursue this ambitious effort notwithstand-ing the opposition of the publishing industry andorganizations representing authors. Much of thepress coverage, however, confuses the facts, and theopposing sides often talk past each other withoutengaging directly.2 This article will attempt to setforth the facts and review the arguments in a system-atic manner.3 Although both sides have strong le-
gal arguments, the article concludes that the appli-cable legal precedents support Googles fair useposition.
The Google Book Search ProjectTheGoogleBookSearchproject (formerly the
GooglePrintproject)has two facets: thePartner
Program (formerly the Publisher Program) and
theLibrary
Project.
Under
the
Partner
Program,
a publisher controlling the rights in abook can
authorizeGoogletoscanthefulltextofthebook
intoGoogles searchdatabase. In response toa
userquery,theuserreceivesbibliographicinfor
mation concerning thebookaswellasa link to
relevanttext.Byclickingonthelink,theusercan
see the full page containing the search term, as
well as a few pagesbefore and after that page.
Links would enable the user to purchase the
book frombooksellersor thepublisherdirectly,
orvisitthepublisherswebsite. Additionally,the
publisherwould share incontextualadvertising
revenueifthepublisherhasagreedforadstobe
shown on theirbook pages. Publishers can re
move theirbooks from the Partner Program at
any time. ThePartnerProgram raisesno copy
right issuesbecause it is conductedpursuant to
anagreementbetweenGoogleandthecopyright
holder.
UndertheLibraryProject,Googleplanstoscan
intoitssearchdatabasematerialsfromthelibrar
ies of Harvard, Stanford, and Oxford Universi
ties, the University of Michigan, and the New
YorkPublicLibrary. Inresponse tosearchque
ries,users
will
be
able
to
browse
the
full
text
of
public domain materials, but only a few sen
tences of text around the search term inbooks
stillcoveredbycopyright. This isacriticalfact
thatbears repeating: forbooks stillundercopy
right, users willbe able to see only a few sen
tences on either side of the search term what
Google calls a snippetof text. Userswill not
seea fewpages, asunder thePartnerProgram,
northefulltext,asforpublicdomainworks. In
deed,userswillneverseeevenasinglepageof
anin
copyright
book
scanned
as
part
of
the
Li
braryProject.4
Moreover,ifasearchtermappearsmanytimes
inaparticularbook,Googlewilldisplaynomore
than three snippets, thus preventing the user
fromviewingtoomuchofthebookforfree. Fi
nally, Google will not display any snippets for
TheGoogleLibraryProject: BothSidesoftheStory1JonathanBand
Email:[email protected]
Band,J. (2006). TheGoogleLibraryProject: BothSidesoftheStory. Plagiary: CrossDisciplinaryStudiesinPlagiarism,
Fabrication,andFalsification,1(2): 117[temporarypaginationforadvanceonlinecopiesofarticles].
ISSN 1559-3096
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withrespecttoanywork:itcanparticipateinthe
PartnerProgram, inwhichcase itwouldshare in
revenue derived from the display of pages from
the work in response to user queries; it can let
Google scan thebook under the Library Project
and
display
snippets
in
response
to
user
queries;
or it canoptoutof theLibraryProject, inwhich
caseGooglewillnotscanitsbook.7
The Library CopiesAspartofGooglesagreementwiththepartici
pating libraries,Googlewillprovideeach library
with a digital copy of thebooks in its collection
scanned by Google. Under the agreement be
tween Google and the University of Michigan
theonly
contract
disclosed
to
the
public
so
far8
the University agrees to use its copies only for
purposespermittedunder theCopyrightAct. If
anyoftheselawfulusesinvolvesthepostingofall
orpartofa librarycopyontheUniversitysweb
siteforexample,postingthefulltextofapublic
domainwork theUniversityagrees to limitac
cess to the work and to use technological meas
ures toprevent theautomateddownloadingand
redistributionofthework.9 Anotherpossibleuse
describedbytheUniversity iskeepingthecopies
inarestricted
(or
dark)
archive
until
the
copy
rightexpiresor the copy isneeded forpreserva
tionpurposes.10
Actions by Other Search EnginesBoth Yahoo and Microsoft have recently an
nounced digitization projects. Microsoft an
nounced that it wouldbe digitizing 100,000 vol
umes from theBritishLibrary. Yahoo agreed to
hosttheOpenContentAlliance,underwhichenti
tiessuch
as
the
University
of
California
and
the
Internet Archive will post digitized works. The
salient difference between these projects and
GooglesLibraryProjectisthattheseprojectswill
involveonlyworksinthepublicdomainorworks
where theownerhasoptedin to thedigitization,
certain reference books, such as dictionaries,
where the display of even snippets could harm
themarketforthework. Thetextofthereference
books will stillbe scanned into the search data
base,butinresponsetoaquerytheuserwillonly
receive
bibliographic
information.
The
page
dis
playing the snippets will indicate the closest li
brary containing thebook, as well as where the
book can be purchased, if that information is
available.
Because ofnondisclosure agreementsbetween
Googleandthelibraries,manydetailsconcerning
the project are not available.5 It appears that
Google will scan only public domain materials
from Oxford and the New York Public Library,
andsmallcollectionsatHarvard. Itwillscanboth
public domain and incopyrightbooks at Michigan and Stanford. Google may make some at
temptstoavoidscanningthesamebookindiffer
ent libraries (particularlyMichiganandStanford,
wheretheoverlapmaybegreatest);but the inac
curacy ofbibliographic information in reference
tools such as card catalogs makes it difficult to
determine easily whether twobooks are, in fact,
identical. For example, a card catalogue entry
maynotindicatewhetherdifferentvolumesareof
the same edition. Given these inaccuracies,
Googlewill
probably
err
on
the
side
of
inclusion.
Googles Opt-Out PolicyInresponsetocriticismfromgroupssuchasthe
American Association of Publishers and the Au
thorsGuild,Googleannouncedanoptoutpolicy
inAugust2005. Ifacopyrightownerprovidedit
witha listofits titlesthat itdidnotwantGoogle
toscanat libraries,Googlewouldrespectthatre
quest,
even
if
the
books
were
in
the
collection
of
oneof theparticipating libraries.6 Googlestated
thatitwouldnotscanany incopyrightbooksbe
tweenAugustandNovember1,2005, toprovide
theownerswith theopportunity todecidewhich
books toexclude from theProject. Thus,Google
provides a copyright owner with three choices
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ofcopyright lawon itsear.13 Theownersas
sert thatundercopyright law, theusercancopy
onlyiftheowneraffirmativelygrantspermission
to theuser thatcopyright isanoptin system,
ratherthananoptoutsystem. Thus,asapracti
cal
matter,
the
entire
dispute
between
the
owners
andGoogleboilsdowntowhoshouldmakethe
firstmove:shouldGooglehavetoaskpermission
beforeitscans?Orshouldtheownerhavetotell
Googlethatitdoesnotwanttheworkscanned?
Googles Fair Use ArgumentTheownersarecorrectthatcopyrighttypically
isanoptin system,and thatGoogle is copying
vast amounts of copyrighted material without
authorization.Google
responds
that
this
copying
ispermittedunderthefairusedoctrine,17U.S.C.
107. The critical question in the litigation is
whether the fair use doctrine excuses Googles
copying.14
The U.S. Court of Appeals for the Ninth Cir
cuit, which comprises the states on the West
Coast, recently issuedadecision that isdirectly
onpoint. InKellyv.ArribaSoft,336F.3d811(9th
Cir. 2003),ArribaSoftoperated a search engine
forInternet
images.
Arriba
compiled
its
database
of imagesby sending out software spiders that
copied thousands of pictures from websites,
withouttheexpressauthorizationofthewebsite
operators. Arriba reduced the full size images
into thumbnails,which it stored in itsdatabase.
In response to a user query, the Arriba search
engine displayed responsive thumbnails. If a
user clicked on one of the thumbnails, she was
linkedtothefullsizeimageontheoriginalweb
site from which the image had been copied.
Kelly,
a
photographer,
discovered
that
some
of
the photographs from his website were in the
Arriba search database, and he sued for copy
right infringement. The lower court found that
Arribas reproductionof thephotographswasa
fairuse,andtheNinthCircuitaffirmed.
With respect tothepurposeandcharacterof
while Google intends to scan incopyrightbooks
without the owners authorization, as well as
worksinthepublicdomain.11
The LitigationOn September 20, 2005, the Authors Guild and
several individual authors sued Google for copy
right infringement. The lawsuit was styled as a
classactiononbehalfofallauthors similarlysitu
ated. Amonthlater,onOctober19,2005,fivepub
lishersMcGrawHill,Pearson,Penguin,Simon&
Schuster, andJohn Wiley & Sons sued Google.
Theauthorsrequestdamagesand injunctiverelief.
Thepublishers, incontrast,onlyrequested injunc
tiverelief. Neithergroupofplaintiffsmovedfora
temporaryrestraining
order
before
the
November
1dateonwhichGoogleannounced that itwould
resume scanning incopyright books. Neither
group sued the libraries for making the books
available to Google, nor for the copies Google is
makingforthem.
The Library Project involves two actions that
raisecopyrightquestions. First,Googlecopiesthe
fulltextofbooksintoitssearchdatabase. Second,
inresponse touserqueries,Googlepresentsusers
withafew
sentences
from
the
stored
text.
Because
the amountofexpressionpresented to theuser is
deminimus, thissecondactionprobablywouldnot
lead to liability. Perhaps for this reason, the law
suits focus on the first issue, Googles copyingof
thefulltextofbooksintoitssearchdatabase.12
Opt-In v. Opt-OutAsnotedabove,Googleannouncedthatitwould
honorarequestfromacopyrightownernottoscan
itsbook.
The
owners,
however,
insist
that
the
bur
denshouldnotbeonthemtorequestGooglenotto
scan aparticularwork; rather, theburden should
be on Google to request permission to scan the
work. AccordingtoPatSchroeder,AAPPresident,
Googlesoptoutprocedureshiftstheresponsibil
ity for preventing infringement to the copyright
ownerratherthantheuser,turningeveryprinciple
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slightlyinfavorofKelly.19
Thecourtalsoreviewedtheamountandsub
stantiality of the portion used in relation to the
copyrightedworkasawhole. 17U.S.C. 107
(3).
The
Ninth
Circuit
ruled
that
althoughArribadidcopyeachofKellysim
agesasawhole,itwasreasonabletodosoin
light of Arribas use of the images. It was
necessaryforArribatocopytheentireimage
to allow users to recognize the image and
decidewhether topursuemore information
about the imageor theoriginatingwebsite.
If Arriba copied only part of the image, it
would be more difficult to identify it,
thereby reducing the usefulness and effec
tivenessofthevisualsearchengine.20
Finally, the Ninth Circuit decided that the
effectoftheuseuponthepotentialmarketforor
value of the copyrighted work, 17 U.S.C. 107
(4),weighedinfavorofArriba. Thecourtfound
thattheArribasearchenginewouldguideusers
to Kellys web site rather than away from it.21
Additionally, the thumbnail images would not
harmKellysabilitytosellorlicensefullsizeim
agesbecause the low resolution of the thumb
nailseffectively
prevented
their
enlargement.22
Everything the Ninth Circuit stated with re
specttoArribacanbeappliedwithequalforceto
the Library Project. Although Google operates
the program for commercial purposes, it is not
attempting to profit from the sale of a copy of
anyof thebooks scanned into itsdatabase, and
thusitsuse isnothighlyexploitative.23 Likethe
Arribasearchengine,Googlesuseistransforma
tive in thatGoogle iscreatinga tool thatmakes
thefull
text
of
all
the
worlds
books
searchable
by everyone.24 The tool will not supplant the
originalbooksbecause itwilldisplayonlyafew
sentencesinresponsetouserqueries.
Like Arriba, the Library Project involves only
published works. And while some of these
workswillbecreative, thevastmajoritywillbe
nonfiction.
theuse,includingwhethersuchuseisofacom
mercialnature,17U.S.C.107(1),theNinthCir
cuit acknowledged that Arriba operated its site
forcommercialpurposes.However,Arribasuse
ofKellysimages
wasmore incidentaland lessexploitative in
nature than more traditional types of com
mercial use. Arriba was neither using
Kellys images to directly promote its web
sitenortryingtoprofitbysellingKellysim
ages. Instead, Kellys images were among
thousands of images in Arribas search en
ginedatabase.15
Moreover, the court concluded that Arribas
usewas transformative that itsusedidnot
merelysupersede theobjectof theoriginals,butinstead added a further purpose or different
character. While Kellys images are artistic
worksintendedtoinformandengagetheviewer
in an aesthetic experience, Arribas search en
gine functions as a tool to help index and im
prove access to images on the internet. The
Ninth Circuit stressed that Arribas use of the
images serves a different function than Kellys
use improving access to information on the
internet versus artistic expression. The court
closedits
discussion
of
the
first
fair
use
factor
by
concluding that Arribas use of Kellys images
promotesthegoalsoftheCopyrightActandthe
fair use exception. This isbecause the thumb
nailsdonotsupplanttheneedfortheoriginals
andtheybenefitthepublicbyenhancing infor
mationgatheringtechniquesontheinternet.16
With respect to the second fairuse factor, the
nature of the copyrighted work, the Ninth Cir
cuit observed that [w]orks that are creative in
natureare
closer
to
the
core
of
intended
copy
right protection than are more factbased
works.17 Moreover, [p]ublished works are
morelikelytoqualifyasfairusebecausethefirst
appearanceoftheartistsexpressionhasalready
occurred.18 Kellys works were creative, but
published. Accordingly, the Ninth Circuit con
cluded that the second factor weighed only
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more of the work than the snippets Google will
display to its users. In any event, neither the
scannedcopynor thesnippetssupplant themar
ketfortheoriginalwork.26
Second,
they
suggest
that
Kelly
is
distinguish
ablebecauseitinvolvedthecopyingofdigitalim
agesontheInternet,whileGooglewillbedigitiz
inganalogworks. Ifanownerdecidestoplacea
workonawebsite, itknowsthatthewebsitewill
becrawledbyasoftwarespidersentoutbya
search engine, and it knows that the spider will
copy the work into its search index. Thus,by
placing the work on the website, the owner has
givena searchenginean implied license tocopy
theworkintoitssearchdatabase. Bycontrast,the
author or publisher of abook has not given an
impliedlicenseforthebooktobescanned.
Googlehasthreepossibleresponsestothisargu
ment. One,theKellydecisionmakesnoreference
toan implied license; itsfairuseanalysisdidnot
turn on an implied license. Two, this argument
suggests that works uploaded onto the Internet
areentitled to lessprotection thananalogworks.
Thisrunscontrarytotheentertainmentindustrys
repeated assertion that copyright law applies to
the Internet in precisely the same manner as it
appliesto
the
analog
environment.
Three,Googlecanarguethat itsoptout feature
constitutes a similar form of implied license. A
critical element of the implied license argument
with respect to material on the Internet is the
copyright owners ability to use an exclusion
header.Inessence,anexclusionheaderisasoft
wareDoNotEntersignthatawebsiteoperator
canplaceon itswebsite. Ifasearchenginesspi
der detects an exclusionheader, it will not copy
thewebsite
into
the
search
index.
Thus,
if
aweb
siteoperatorplaces contenton the Internetwith
out an exclusion header, the search engine can
assume that theoperatorhasgiven itan implied
license to copy the website. Similarly, now that
Google has announced its optout policy, it can
argue thatanyowner thathasnotoptedouthas
givenitanimpliedlicensetoscan.27
As in Kelly, Googles copying of entirebooks
into itsdatabase is reasonable for thepurposeof
the effective operation of the search engine;
searchesofpartial textnecessarilywould lead to
incomplete results. Moreover, unlike Arriba,
will
not
provide
users
with
a
copy
of
the
entire work,but only with a few sentences sur
rounding the search term. And if a particular
termappearsmany times in thebook, thesearch
enginewillallow theuser toviewonly three in
stancestherebypreventingtheuserfromaccess
ingtoomuchofthebook.
Finally, as with the Arriba search engine, it is
hard to imagine how the Library Project could
actuallyharmthemarketforbooks,giventhelim
itedamountoftextauserwillbeabletoview. To
besure,ifausercouldview(andprintout)manypages of abook, it is conceivable that the user
would rely upon the search engine rather than
purchasethebook.Similarly,underthosecircum
stances, librariesmightdirectusers to the search
engine rather than purchase expensive reference
materials. But when the user can access only a
few sentencesbefore and after the search term,
anydisplacementof sales isunlikely. Moreover,
theLibraryProjectmayactuallybenefit themar
ket for the book by identifying it to users and
demonstratingits
relevance.
This
is
particularly
important for thevastmajorityofbooks thatare
not well publicizedby their publishers. Google
willencourageusers toobtainahardcopyofthe
bookbyprovidingalinktoinformationwherethe
bookcanbeborrowedorpurchased.25
The Owners Response to GooglesFair Use ArgumentTheownershavethreeresponsestoKelly. First,
they note that Arriba stored a compressed, low
resolution version of each image, while Google
willstorethefulltextofeachbook. Thisseemsto
beadistinctionwithoutadifference,becauseAr
riba had to make a high resolution copybefore
compressing it. Furthermore, the low resolution
image Arriba displayed to users represents far
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Rose,Music,Inc.,510U.S.569(1994). Thus,Kelly
noted thatCampbell heldthat[t]hemore trans
formative thenewwork, the less important the
other factors, including commercialism, be
come.28 Likewise, Kelly cited Campbell for the
proposition
that
the
extent
of
permissible
copy
ingvarieswith thepurposeandcharacterof the
use.29AndKellyfollowedCampbellsconclusion
that [a] transformative work is less likely to
have an adverse impact on the market for the
original thanawork thatmerelysupersedes the
copyrightedwork.30
Perhaps most importantly, Kelly repeated the
Supreme Courts articulation in Campbell and
Stewartv.Abend, 495U.S.207, 236 (1990),of the
objectiveofthefairusedoctrine:Thisexception
permits courts toavoid rigidapplicationof thecopyright statute when, on occasion, it would
stifle the very creativity which that law is de
signedtofoster.31 Googlewillcontendthatthe
LibraryProjectiscompletelyconsistentwiththis
objective in that it will ensure that creative ac
complishments do not fade into obscurity. Be
causetheNinthCircuitsocloselyfollowedCamp
bell,andbecause theSecondCircuit isalsoobli
gated to follow Campbell, Google will urge the
Second Circuit to conduct a fair use analysis
similarto
the
Ninth
Circuits.
RegardlessofKellyandMP3.com,the issuethe
SecondCircuitwillprobablybemost interested
inexploring iswhetherGooglesuse is transfor
mative. On the one hand, Google is not
transforming the text of any individualbook
intoanewwork,e.g.,creatingaparody. Onthe
other hand, Google is creating something new
and valuable a search index consisting of the
full textofmillionsofbooksand thiscreation
differssignificantly
from
the
uses
offered
by
the
owners. Weighing these arguments, the Ninth
CircuitdecidedthatArribasusewastransforma
tive. The Second Circuit will conduct its own
analysisofthisissue.
ThecopyrightownersthirdresponsetoKellyis
that it iswronglydecided. Inotherwords, the
NinthCircuitmadeamistake. Theauthorsand
publishers suedGoogle in federal court inNew
York,partoftheSecondCircuit. While the trial
court
in
New
York
may
look
to
Kelly
for
guid
ance,Kelly isnotabindingprecedentintheSec
ondCircuit. Similarly,whenthecaseisappealed
to theSecondCircuit, theSecondCircuitwillbe
interested in how the Ninth Circuit handled a
similar case, but it is free to conduct its own
analysis.
TheownerssuggestthatthetrialcourtinNew
Yorkwillbeinfluencedbyadecisionbyafederal
trial judge in New York, UMG Recordings v.
MP3.com, 92 F. Supp. 2d 349 (S.D.N.Y. 2000).
MP3.com established a spaceshifting servicethatallowedpeoplewhopurchasedaCD toac
cess the music on the CD from different loca
tions. MP3.com copied several thousand CDs
into its server, and then provided access to an
entireCDtoasubscriberwhodemonstratedthat
he had possessed a copy of the CD. MP3.com
arguedthatthecopiesitmadeonitsservercon
stitutedfairuse. Thecourtrejectedtheargument
and assessed millions of dollars of statutory
damagesagainstMP3.com.
GooglewillcontendthatMP3.comiseasilydis
tinguishable. Itwillclaimthatitsuseisfarmore
transformative thanMP3.coms it iscreatinga
search index, while MP3.com simply retrans
mittedcopies inanothermedium. Additionally,
Googlewillclaim that itsusewillnotharmany
likelymarket for thebooks there isnomarket
forlicensingbooksforinclusionindigitalindices
of the sort envisioned by Google. In contrast,
MP3.comsdatabaseclearlycouldharmmarkets
foronline
music,
which
the
plaintiffs
had
already
takenstepstoenter. Theissueofdifferentlicens
ingmarketsisdiscussedbelowingreaterdetail.
Google also will insist that the Ninth Circuit
decidedKellycorrectly. ItwillpointtotheNinth
Circuitsheavy relianceon theSupremeCourts
most recent fair use decision, Campbellv.Acuff
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which that law isdesigned to foster.32 In the
public debate concerning the Library Project,
supporters and opponents have made a wide
variety of equitable arguments that may ulti
mately factor into theSecondCircuits analysis.
Some
of
these
equitable
arguments
overlap
with
factorsdiscussedabovewithrespecttoKelly.
The Social Benefit of the Library ProjectGooglessupportersstressthatbyassemblinga
searchable index of the full text of millions of
books,Google is creatinga research toolofhis
toricsignificance. TheLibraryProjectwillmake
iteasier than everbefore forusers to locate the
wealth of informationburied inbooks. More
over,by
including
this
information
in
its
search
index, Google will be directing students to
sourcesofinformationfarmorereliablethanthe
websitestheysooftenfrequent,andreacquainta
newgenerationwithbooksand libraries. Addi
tionally,byhelpingusersidentifyrelevantbooks,
theLibraryProgramwilloften increasedemand
fortheseworks.
The Owners Desire for ControlTheownersbyandlargeagreethattheLibrary
Projecthassignificantsocialutility. Indeed,au
thorsparticipating in theAuthorsGuild lawsuit
acknowledge that the Library Project will pro
vide them with a helpful research tool. Their
objectionisnotthatGoogleiscreatingafulltext
search index; it is thatGoogle iscreating the in
dex without their permission. Tobe sure, the
SupremeCourthasstatedthat[c]reativeworkis
tobeencouragedandrewarded,butprivatemo
tivationmustultimately serve the causeofpro
motingthe
broad
public
availability
of
literature,
music,andtheotherArts.33 Nonetheless,some
courts have viewed copyright as a mechanism
forprovidinganauthorwithcontrolovertheuse
of his creative expression. Thus, some owners
believe that Googles optout option is insuffi
cientbecause they, and not Google, should de
cidewhethertheirworksaredigitized.
Intermediate CopyingGoogles supporters contend that the
intermediate copying cases also demonstrate
thefairusenatureoftheLibraryProject. Inthese
cases,
courts
found
that
fair
use
permitted
the
translationofmachinereadableobject code into
humanreadablesourcecodeasanessentialstep
in thedevelopmentofnoninfringing interoper
able computer programs. See,for example, the
following cases: SegaEnterprisesv.Accolade,Inc.,
977F.2d1510 (9thCir.1992);AtariGamesCorp.v.
Nintendo,975F.2d832(Fed.Cir.1992);SonyCom
puter Entertainment v. Connectix Corp., 203 F.3d
596 (9th Cir.), cert. denied, 531 U.S. 871 (2000).
Thus,Googles scanningofbooks shouldbeex
cusedbecauseitisanecessarystepinthedevel
opmentof
asearch
index
that
displays
non
infringingsnippetstousers.
The owners respond that the intermediate
copying cases are distinguishablebecause they
address a problem specific to software: transla
tionoftheprogramsistheonlymeansofaccess
ingideasunprotectedbycopyrightthatarecon
tained within the program. This problem, of
course,doesnotexistwithbooks. Furthermore,
in the intermediate copying cases, the software
developerdiscarded
the
translation
once
it
devel
oped itsnew,noninfringingprogram. Google,
conversely, will retain the scanned copy in its
searchindex. Whileacknowledgingthesefactual
differences,Googlessupportersstresstheunder
lyingprincipleoftheintermediatecopyingcases:
thatcopyingmaybeexcusedifitisnecessaryfor
asociallyusefulnoninfringingenduse.
The EquitiesAlthoughcourtstypicallyfocusonthefourfair
use factors and technical questions such as
whether a use is transformative, the Supreme
Courthas stressed that fairuse isanequitable
rule of reason which permits courts to avoid
rigid application of the copyright statute when,
on occasion, it would stifle the very creativity
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contained in the Google search index. Thus,
Google will receive no advertising revenue di
rectlyattributabletotheinclusionofbooksinthe
searchindex,atleastintheshortterm. Instead,it
appears that Google hopes thatby including a
large
number
of
books
in
its
search
index,
it
will
differentiate itself from its competitors and at
tractmoreeyeballs,which in turnwill lead to
moreadvertisingrevenue.
Stockanalystshavequestioned thewisdomof
this$750millioninvestment. Whattheowners
seekwillrenderthisalreadyquestionableinvest
mentaneconomicimpossibility. Thetransaction
cost of determining who owns the copyright,
locating the copyrightowner,andnegotiatinga
licensewouldbeoverwhelming, even to an en
tity like Google. Mostbooks published in theUnitedStatesincludeacopyrightnotice,butthat
notice doesnot specify whether the author, the
publisher, or a third party has the right to au
thorizedigitization. Bookspublishedoutsidethe
United States often have no copyright notice.
Moreover, there is no registry of current copy
right ownership, with current contact informa
tion for the owner. Thus, Google could easily
spendmorethanathousanddollarspervolume
to identify, locate,andcontact theownereven
ifthe
owner
had
no
objection
to
scanning
its work for free. The transaction costs alone
couldeasilyreachover$25billion($1000/bookx
25,000,000incopyrightbooks).
Googlemightbewillingtotakea$750million
gamble,butalmost certainlywillnotbewilling
totakea$25billiongamble,whichdoesnoteven
include the license fees some ownersmightde
mand.IfGooglewererequiredtoobtainpermis
sion to scan the incopyrightbooks, itprobably
would
scan
only
public
domain
works
andworkswhoseowners affirmatively requested to
beincluded. Onlyasmallpercentageofowners
are likely to take this step. As noted above, it
often is not clear whether the publisher or the
authorhastherighttoauthorizedigitizationofa
work. If theauthor isdeceased,hisheirsmight
notbeawarethattheyownthecopyright. And
The Owners Desire for CompensationAdditionally,manyownersdonotwanttobe
leftoutof the search index; theywant tobe in
cluded,justonbettertermsthanGoogleisoffer
ing.
Most
major
U.S.
publishers
have
joined
the
Partner Program, at least on a trialbasis with
respect to someof their titles. But the fact that
thecopyrightownershavesuedGooglenotwith
standingthethreechoicesGooglehasgiventhem
(thePartnerProgram,theLibraryProject,oropt
ingout)indicatesthatsomeownerswantabetter
deal thanGoogle isoffering.Oneobviouslybet
terdealthantherevenuesharingunderthePart
nerProgram is anupfrontpaymentbyGoogle
foreachtitleinthesearchindex.
Thisinsistence
on
remuneration
seems
to
have
two relatedbases. First, theowners repeatedly
point toGoogles financial success. Theyargue
that given a market capitalization and level of
profitability that may exceed that of the entire
publishingindustry,Googlecanaffordtopayfor
therighttoindextheirworks. Second,theown
ers claim thatGooglewillprofit from including
theirworks in its index,presumablyby thesell
ingofadvertising. Googleshouldnotbepermit
ted to profit from their labor without sharing
moreof
the
revenue
than
is
offering
un
derthePartnerProgram.
The Economics of the Library ProjectGoogle has not disclosed how much it esti
matesitwillspendscanningbooksintoitssearch
index. Microsoft announced that it will spend
$2.5million toscan100,000volumes in theBrit
ishLibrary.
Assuming
similar
scanning
costs,
Google will spend $750 million to scan the 30
million volumes contained in the collections of
the five participating libraries. Google will not
display advertisements on the page displaying
the snippets fromaparticularbook. Moreover,
atpresent,advertisementswillnotappearonthe
search results page listing the responsive items
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Moreover,anownersfailuretooptoutproba
blywillnotharm themarket for thework. As
noted above,because Google will display only
snippets of the work, abooks inclusion in the
searchindexwillnotdisplacesales. Googlewill
display
no
more
than
three
snippets
per
work
withrespecttoaparticularsearchterm. Further,
Googlewillnotdisplayanysnippetsfromrefer
ence works such as dictionaries where the dis
playofsnippetsarguablycouldharmthemarket.
Theowners argue that theLibrary Project re
stricts owners ability to license their works to
search engine providers. The existence of the
PartnerProgram,whichinvolveslicensing,dem
onstrates that the Library Project does not pre
clude lucrative licensing arrangements. By par
ticipating in thePartnerProgram,publishersreceive revenuestreamsnotavailable to themun
dertheLibraryProject. Googlepresumablypre
fers for publishers to participate in the Partner
ProgrambecauseGooglesavesthecostofdigitiz
ingthecontentifpublishersprovideGooglewith
thebooks in digital format. And Google has
made clear that it is willing to upgrade abook
from theLibraryProject to thePartnerProgram
upontheownersrequest.
Furthermore,Yahoo
announced
the
formation
oftheOpenContentAlliance,whichwillinclude
works licensed by their owners, nearly a year
after Google announced the Library Project.
GooglesLibraryProjectobviouslydidnotdeter
Yahoofromadoptingadifferentbusinessmodel
basedonlicensing.
Significantly, theLibraryProjectwillnotcom
pete with abusiness model involving licensed
worksbecausesuchamodelwillprobablyshow
morethan
just
snippets.
While
the
Library
Pro
jectwillhelpusersidentifytheentireuniverseof
relevantbooks,amodelwithlicensedworkswill
provide users with deeper exposure to a much
smaller groupofbooks.35 Eachbusiness model
will satisfy different needs. Stated differently,
the Library Project targets the indexing market,
whileotheronlinedigitizationprojectsaimatthe
foroutofprintbookswhere thepublisher con
trolsthecopyright,thepublisher if it isstill in
business mightnothave any economic incen
tive to request Google to scan thebook (more
than 75% of the incopyrightbooks are outof
print).
In
sum,
most
books
probably
would
not
beincludedinthesearchindex.
Somehavesuggestedthatthetransactioncosts
couldbe reducedby a collective license, along
thelinesofthelicensesASCAPandBMIprovide
for the publicperformance of musical composi
tions. Whilesuchanarrangementcouldtheoreti
callyworkonagoing forwardbasisforbooks
publishedafter2005 itwouldnotworkforthe
25,000,000existing, incopyrightbooks. Getting
a significant share of the copyright owners of
these25,000,000workstoagreetoparticipateinacollective license system wouldbe as costly as
Googlegetting theirpermissiondirectly. More
over,evenonagoingforwardbasis,itisunlikely
that thehypotheticalnewlyestablishedauthors
collection society would reach an agreementon
license termswithGoogle. Thecollection soci
etyandGoogle likelywouldhaveverydifferent
perceptions on what wouldbe a reasonable li
cense fee for including abook in the search in
dex.
Harm to the OwnersItiseasytoseetheharmtothepublicflowing
fromanincompletesearchindexthepublicwill
not find as complete a universe of relevant
books. And an incomplete search index is the
inevitableresultfromplacingonGooglethebur
denofobtainingpermissionfromtheowners.
But it is much more difficult to identify the
harm
to
the
owners
deriving
from
allocating
to
them theburdenofoptingout. Thecostof the
owners opting out is much less than Googles
cost of seeking permission. An author and her
publisheraremuchbetterplacedthanGoogleto
determinewhohas theright toauthorizedigiti
zation. Andwhoevertheownerprovestobe, it
obviouslyknowswhereitislocated.34
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the indexedbooks, which could displace sales.
Googleresponds that if itdoeschange itspolicy
inamannerthathurtssales,theownerscansue
at that time. Sincedisplaying someofabooks
textinresponsetoasearchqueryimplicatesboth
the
reproduction
right
and
the
display
right,
an
ownerwillbe able tobringan infringementac
tion against Google when it changes its policy,
even if that occurs long after the original scan
ningofthebook. Accordingly,thereisnoreason
to prevent Google from proceeding now, when
itspracticesdonotharmowners. It isunlikely
thatthesefeeswould increaseauthorsincentive
towrite.
SecurityTheownershaveexpressedconcernabout the
securityofthedigitizedcopiesinGooglessearch
index. Theyfearthatsomeonewouldbeableto
hack into the index and upload the digitized
books onto the Internet, where they wouldbe
publiclyavailable.37 Google,however,hasasig
nificant incentive to protect the security of its
index: itwouldnotwant to see its$750million
investmentevaporate. Moreover,giventheease
ofdigitizingany singlebookbought in abook
storeor
checked
out
of
alibrary,
it
is
far
from
clearwhyanyonewouldbother tohack into the
Google index to access digitized books. And
even if someone were to hack into the Google
search index, the information wouldbe format
ted inamanner that facilitateswordsearch,not
distributionoffulltext,i.e.,thesearchindexdoes
notconsistofpdffiles.
Finally,theSecondCircuithasmadeclearthat
if an entity lawfully extracted information from
another
companys
database,
the
entity
is
not
liable fora thirdpartysuseof that information
to infringe theother companys copyright in its
database. SeeMatthewBender&Co.v.Hyperlaw,
Inc.,158F.3d693(2ndCir.1998). Thus, theSec
ond Circuitwould not holdGoogle responsible
forhackersunlawfulusesof the contentsof its
search index, unless the owners can show that
sampling market. See BMGMusic v. Gonzalez,
430F.3d888(7thCir.2005). Byconcentratingon
the indexingmarket, theLibraryProjectwillnot
harmthesamplingmarket.
Finally,
as
discussed
above,
the
enormous
transaction costs involved in compiling a com
prehensive full text search index with the own
ers authorization preclude the creation of such
an index in thatmanner. Thus,Googles index
does not deprive owners of potential revenues
fromtraditional, reasonable,or likely tobede
veloped markets for the work. SeeAmerican
GeophysicalUnionv.TexacoInc., 60 F.3d 913 (2nd
Cir.),cert.denied,516U.S.1005(1995).36
The Value of an Indexing LicenseAssuming that the transaction costs were not
an insurmountablebarrier to the existence of a
licensingmarket for indexingrights for theuni
verseofpublishedbooks, thevalueof a license
with respect to any particular book would be
relatively small. For thevast majorityofusers,
an index to the vast majority ofbooks is more
than adequate. Thus, from the perspective of
Googleanditsusers,themarginalimportanceof
theinclusion
of
any
particular
book
is
small,
and
Google wouldbe willing to pay at most an ex
tremelymodestfeefortheindexingrightstoany
singlebook. Evenforapublisherthatownedthe
rightstoalargebacklistofbooks,thetotallicense
fees itwouldreceivewouldprobablybesignifi
cantly less than the legal fees the litigationover
theLibraryProjectwillgenerate. Although the
aggregatevalueofall the licenses in thishypo
thetical market would be enormous, copyright
ownership isdispersedamongsomanyauthors
and
publishers
that
any
one
owner
could
rea
sonablyexpectonlytriviallicensefees.
The Definition of SnippetsTheownershavearguedthatsnippetisnota
legalterm. Therefore,atsomepointinthefuture
Google could startdisplaying largerportionsof
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searchenginesdatabase. Asapracticalmatter,
eachofthemajorsearchenginecompaniescopies
a large (and increasing)percentageof theentire
World WideWeb every few weeks to keep the
database current and comprehensive. When a
user
issues
a
query,
the
search
engine
searches
the websites stored in its database for relevant
information. Theresponseprovidedtotheuser
typicallycontainslinksbothtotheoriginalsiteas
wellastothecachecopyofthewebsitestored
inthesearchenginesdatabase.
Significantly, the search engines conduct this
vastamountofcopyingwithouttheexpressper
mission of the website authors. Rather, the
search engine firmsbelieve that their activities
constitutefairuse. Inotherwords,thebillionsof
dollars of market capital represented by thesearchenginecompaniesarebasedprimarilyon
the fairusedoctrine. Ifa court concludes that
Googles scanning of millions ofbooks is not a
privilegedfairuse,thensearchenginesscanning
ofmillionsofwebsitesmightnot constitute fair
useeither,unlessthecourttakespains todistin
guishonesituationfromtheother. Asdiscussed
above, the owners contend that search engines
haveanimplied license to scanworksposted
ontheInternet. ButtheNinthCircuitinKellyv.
ArribaSoft
relied
on
fair
use,
not
implied
license.
The Impact on the Publishing IndustryTheownerscontendthatifGoogleispermitted
toassembleasearchindexofincopyrightbooks,
itwillhaveanunfairadvantageoverpublishers
thatwanttoprovideebooks. Thisisbecausethe
Library Project will lead consumers to perceive
Googleas the leadingsource fordigitalbooks.39
Thisargument
overlooks
the
fact
that
willbe able to provide consumers with the full
textof abook in its search indexonlywith the
permissionof thecopyrightowner; fairusewill
not permit Google to make such a distribution
withouttheownersauthorization.
The owners similarly worry that the Library
Google somehow encouraged or induced the
hackers to infringe. Nothwithstanding the ab
senceofdirector secondary liabilityon itspart
for the infringing actions of hackers, Google
wouldstillhavesubstantialbusinessreasons for
maintaining
the
security
of
its
search
index,
as
discussedabove.
FloodgatesTheowners suggest that if Google is able to
get awaywith itsLibrary Project,other search
engines will also digitize their works without
authorization.38 But it isnotclearhowmoredig
itization will harm the owners, so long as the
othersearchenginesconfinetheirdisplayoftext
tosnippets.
And
if
the
other
search
engines
dis
playmorethansnippets, inamanner that inter
fereswith thesaleofworksor their licensing to
businessmodelssuchasthePartnerProgram,the
ownerscansuethosesearchenginesatthattime.
The owners alsouse the floodgates argument
toattacktheutilityofGooglesoptout. Ifother
search engines engage inmassdigitization pro
jectswithoptoutfeatures,ownerswouldhaveto
optoutrepeatedly aburdensomeprocess,es
peciallyfor
individual
authors.
As
apractical
matter,however,onlyasmallnumberofsearch
enginefirmshavetheresourcestoengageindig
itization programs on the scale of Googles Li
braryProject. Andevenifmanyspecializedindi
cesemerge,thenumberofindicesthatlikelywill
includeany specificbook is small. Also, if this
doesbecomeaproblematsomepoint in the fu
ture,groups like theAuthorsGuildcouldmain
tainageneraloptoutregisterthatsearchengines
couldhonor.
The Impact on Search EnginesThe courts analysis of the Library Project
couldaffect theoperationof Internet searchen
ginesgenerally. Asearchengine firmsendsout
softwarespiders thatcrawlpubliclyaccessible
websitesandcopyvastquantitiesofdataintothe
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event,ifanownerdoesnotwantGoogletoscan
her inprint or outofprint book, Google will
honorherrequest.
The Privatization of KnowledgeSome scholars have acknowledged that the
LibraryProjectcangreatlyassistresearchactivi
ties,butnonethelessvoiceconcern thatacorpo
rate entity is assembling this vast search index
rather than a public library.41 They feel that
Googles ability to influence search results
throughitssearchalgorithmwillprovideitwith
toomuch controlover theaccess toknowledge.
Additionally, they worry that Google will have
aneconomic incentivenottorespecttheprivacy
ofits
users.
While in theory itmightbepreferable froma
societalpointofviewfortheLibraryProjecttobe
conductedby librariesrather thanaprivatecor
poration, libraries simply do not have the re
sourcestodoso. Thus,aspracticalmatter,onlya
largesearchenginesuchasGooglehasboth the
resourcesandtheincentivetoperformthisactiv
ity.
The Legality of the Library CopiesGooglewillprovideeach libraryparticipating
in theLibraryProjectwith adigital copyof the
books in its collection scannedbyGoogle. The
ownershavenotyetsuedthe libraries,norhave
they expressed any intention to do so. In the
event of litigation, the lawfulness of the library
copies will turn on how the libraries are using
them.42Asearchindexassembledbythelibraries
should receive even more favorable treatment
than Googles given the libraries non
commercialpurpose. Ontheotherhand,acourt
probably would find infringement if a library
madethefulltextofincopyrightworksavailable
onlinetothegeneralpublic.
The owners observe thatbecause the Univer
sityofMichiganisastateinstitution,thedoctrine
ProjectwillprovideGoogleabridgehead in the
publishing industry,which itwillbeable toex
ploit with its enormous resources. Of course,
more competition for publishers shouldbenefit
bothauthorsandconsumers. AndifGoogleen
gages
in
anti
competitive
conduct,
the
publishers
canturntotheantitrustlaws.
What do Authors Want?TheAuthorsGuild,whichsuedGoogle,repre
sentsonly8,000authors. Thus, itspositionsdo
notnecessarilyreflecttheviewsofthehundreds
of thousandsofauthorswhosebookswouldbe
scannedundertheLibraryProject. Mostauthors
wanttheir
books
to
be
found
and
read.40
More
over, authors are aware that an ever increasing
percentage of students andbusinesses conduct
research primarily, if not exclusively, online.
Hence,ifbookscannotbesearchedonline,many
userswillneverlocatethem. TheLibraryProject
is predicated upon the assumption the authors
generallywant theirbooks tobe included in the
searchdatabasesothatreaderscanfindthem.
The Library Project is particularly important
forauthors
of
out
of
books.
While
the
pub
lishers may participate in digitization projects
suchas thePartnerProgramwith respect to in
printbooks,theyhavenoincentivetodevoteany
effort to theoutofprintbooks,whichno longer
haveanyeconomicvalue. Butsincethepublish
ersoftheseoutofprintbooksmaystillholdthe
copyright, theauthorsof thebooksdonothave
the legal right toauthorizeGoogle to scan their
books. This large class of authors probably is
pleased that Google is providing users with a
mechanism to find their abandonedbooks. In
deed,manyofthemmightevenbewillingtopay
Googletoincludetheirbooksinitssearchindex,
and are happy that Google is doing so free of
charge. While the authors typically will receive
nodirecteconomicbenefit from the rediscovery
oftheiroutofprintworks,itcouldenhancetheir
reputationsanddisseminate their ideas. Inany
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causeof thescaleof theLibraryProject,Google
cannotattempttolocatetheownersoftheallthe
booksitintendstoincludeinitssearchindex.
International Dimensions
FairuseundertheU.S.CopyrightActisgener
allybroaderandmoreflexiblethanthecopyright
exceptionsinothercountries,includingfairdeal
ingintheU.K. Thus,thescanningofalibraryof
books might notbe permitted under the copy
right laws of most other countries. However,
copyright law is territorial; that is,one infringes
the copyright laws of a particular country only
withrespecttoactsofinfringementthatoccurred
inthat
country.
Since
will
be
scanning
incopyrightbooksjust in theUnitedStates, the
onlyrelevantlawwithrespecttothescanningis
U.S.copyrightlaw. (Googlewillscanonlypublic
domainbooksatOxford.)
Nonetheless, the search results willbeview
ableinothercountries. ThismeansthatGoogles
distributionofa fewsentences fromabook toa
user inanothercountrymustbeanalyzedunder
thatcountryscopyrightlaws.44 Whilethecopy
rightlaws
of
most
countries
might
not
be
so
gen
erous as to allow the reproduction of an entire
book,almostallcopyright lawsdopermit short
quotations. These exceptions for quotations
shouldbesufficienttoprotectGooglestransmis
sionofLibraryProjectsearchresultstousers.
ConclusionSociety would benefit significantly from a
search indexthatincludesthefulltextofa large
percentageofallpublishedbooks. Suchacom
prehensiveindex
can
be
compiled
only
without
theobtainingthepermissionofallthecopyright
owners;thetransactioncostsofobtainingall the
permissions wouldbe so large as to render the
project an economic impossibility. At the same
time,compilingsuchanindexwithoutobtaining
theownerspermissionswillnothurttheowners
inanydiscernableway,providedthatthesearch
of sovereign immunity will prevent the owners
fromsuing theUniversity if theUniversitymis
uses itscopies (e.g.,distributes thempubliclyas
opposed to storing them in a restricted or dark
archive). Althoughsovereign immunitywould
shelter
the
University
from
damages
liability,
the
ownerscouldstillpursueinjunctivereliefagainst
the Universitys officers and librarians. This
wouldenable theowners tostopanymisuseby
theUniversityofMichiganLibrary.
The Orphan Works InitiativeTheCopyrightOfficehasmade recommenda
tions toCongressonhowtoaddresstheorphan
works problem how to enable uses of works
whoseowners
cannot
be
identified
or
located.43
There are some similarities between orphan
worksand theGoogleLibraryProject,but there
are significant differences as well. Certainly,
manyofthebooksGoogleseekstoincludeinits
search index probably are orphan works. But
Googlesuseofeachtheseworksislessextensive
than the uses others hope to make of orphan
works. Asdiscussedabove,Googlewillscanan
entirework into its search index,butwillmake
onlysnippetsavailabletothepublic. Incontrast,
manyof
those
who
hope
to
use
orphan
works
intend tomake the entirework available to the
public. Forexample,alibrary intendingtodigi
tizeanarchiveofsoundsrecordingsoffolksongs
probably plans to make the sound recordings
availableontheInternet. Thispublicdistribution
ofentireorphanworkswill limit theavailability
of a fair use defense in many cases; hence, the
userneedsanewformofreliefalongthelinesof
what the Copyright Office is proposing. Con
versely,Googlecanmakeastronger fairusear
gument
because
it
will
display
only
snippets,
and
notentireworks.
Additionally, therelief theCopyrightOffice is
proposingtoCongresswillnothelpGoogle. The
Copyright Offices proposal limits the remedies
available to a reappearing owner if the user
madeagoodfaithefforttolocatetheowner. Be
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REFERENCES
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir.), cert. denied, 516 U.S. 1005 (1995).
Atari Games Corp. v. Nintendo, 975 F.2d 832 (Fed. Cir. 1992).
Basic Books, Inc. v. Kinkos Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).
Campbell v. Acuff-Rose, Music, Inc., 510 U.S. 569 (1994).
Field v. Google, No. CV-S-04-0413-RCJ-LRL (D-NV Jan. 12, 2006).
Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003).
Matthew Bender & Co. v. Hyperlaw, Inc., 158 F.3d 693 (2nd Cir.1998).
Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).
Sega Enterprises v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596 (9th Cir.), cert. denied, 531 U.S. 871 (2000).
Stewart v. Abend, 495 U.S. 207, 237 (1990).
Thatcher, S. G. (2005). Fair Use in Theory and Practice: Reflections On its History and the Google Case.NACUA conference on The Wired University: Legal Issues at the Copyright, Computer Law, and InternetIntersection. Arlington, VA.
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975).
UMG Recordings v. MP3.com, 92 F. Supp. 2d 349 (S.D.N.Y. 2000).
resultsdisplayonly snippetsof text. Itwillnot
diminishthemarketforthebooks,norwillitpre
vent licensed digitization projects that provide
users with more text for a narrower range of
books. Googlefurtherreduces thepossibilityof
harmby
permitting
owners
to
opt
out
of
the
Li
braryProjectaltogether,oroptin to thePartner
Program. Acourtcorrectlyapplyingthefairuse
doctrine as an equitable rule of reason should
permitGooglesLibraryProjecttoproceed.
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NOTES1. Earlier versions of this article appeared in E-Commerce Law & Policy and a briefing paper prepared for the Office of InformationTech-
nology Policy of the American Library Association.
2. Many articles incorrectly suggest that users can access the full text of in-copyright works. Googles supporters discuss the enormous
social value of a digital index of the worlds books, while Googles opponents stress Googles use of copyrighted material without per-mission.
3. Many of the arguments recounted here emerged in various public debates concerning the Library Project, including debates in whichthe author participated. See, e.g., Gutenberg meets Google: The Debate About Google Print, pff.org/issues-pubs/pops/pop13.1googletranscript.pdf.
4. Displays of the different treatments can be found at http://books.google.com/googlebooks/library.html.
5. As discussed later in the article, only the agreement with the University of Michigan has been made public.
6. Because the author, the publisher, or a third party can own the copyright in a work, this paper will refer to owners.
7. Google initially required owners to state under penalty of perjury that they owned the copyright in the books they wished to opt-out.Google relaxed this requirement after the owners complained that they felt uncomfortable making assertions of ownership under pen-alty of perjury because of the complexities of copyright law. See Sanford G. Thatcher, Fair Use in Theory and Practice: Reflections on
its History and the Google Case (pp. 11-12).
8. The contract was disclosed as required under the Michigan Freedom of Information Act.
9. See Cooperative Agreement Between Google Inc. and the Regents of the University of Michigan, section 4.4.1.
10. UM Library/Google Digitization Partnership FAQ, August 2005.
11. HarperCollins recently announced that it intends to scan 20,000 books on it backlist and make the digital text available on its serverfor search engines to index. It will offer this service to search engines free of charge. The technological feasibility of this distributedindexing has not yet been proven.
12. The copyright issues relating to the copies Google makes for the participating libraries are discussed later in the article.
13. Association of American Publishers Press Release, Google Library Project Raises Serious Questions for Publishers and Authors, August 12, 2005.
14. In its answer to the Authors Guild lawsuit, Google raised numerous other defenses, including merger doctrine, scenes a faire, failureto comply with copyright registration formalities, lack of suitability for class action treatments, and the plaintiffs lack of standing. In thePublishers suit, Google raised many of these defenses, as well as license to scan and the publishers lack of ownership of electronicrights.
15. Kelly, 336 F.3d at 818.
16. Kelly, 336 F.3d at 818-20.
17. Kelly, 336 F.3d at 820.
18. Id.
19. Id.
20. Kelly, 336 F.3d at 821.
21. Id.
22. See also Field v. Google, No. CV-S-04-0413-RCJ-LRL (D-NV Jan. 12, 2006). Blake Field brought a copyright infringement lawsuitagainst Google after the search engine automatically copied and cached 51 stories he posted on his website. Google argued thatits Google Cache feature, which allows Google users to link to an archival copy of websites indexed by Google, does not violatecopyright law. The court granted summary judgment in favor of Google on five independent bases:
(a) Serving a webpage from the Google Cache does not constitute direct infringement, because it results from automated, non-volitional activity initiated by users;
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(b) Field's conduct (posting an "allow all" robot.txt header and then intentionally failing to set a "no archive" metatag) indicated thathe impliedly licensed search engines to serve his archived web page;
(c) Fields is estopped from asserting a copyright claim because he induced Google to infringe by using software code that invitedGoogle to cache and serve his website;
(d) The Google Cache is a fair use; and
(e) The Google Cache qualifies for the Digital Millennium Copyright Act's section 512(b) caching "safe harbor" for online serviceproviders.
23. In Field v. Google, the court dismissed the argument that Google was a commercial entity by stressing that there was no evidence thatGoogle profited from its use of Field's stories. The court observed that his works were among the billions of works in Google's data-base. In the Library Project cases, Google will be able to make the same argument with respect to any one owner.
24. Google Blog post, Making Books Easier to Find, August 11, 2005. This tool includes not only digital copies of the books, but alsoan index of all the words in the books, and sophisticated software that enables the user to search the index and access search results.
25. In Field v. Google, the court considered an additional factor: whether an alleged infringer has acted in good faith. Googles allow-ing owners to opt-out, its refusal to display any snippets for certain reference works, and its willingness to upgrade any book into therevenue sharing Partner Program give Google strong evidence that it is acting in good faith.
26. Additionally, in Field v. Google, the court found Googles presentation of caches of the full text of Fields stories to be a fair use.
27. In Field v. Google, Google raised implied license as a defense. But Googles implied license argument in Field does not support theowners attempt to distinguish Kelly on the basis of the unique characteristics of spidering the Web. In Field, the court treated impliedlicense and fair use as distinct defenses. Thus, the absence of an implied license for the scanning in the Library Project does notweaken Googles fair use defense based on Kelly. Moreover, Field used a software header that specifically invited Googles spider tocrawl his website. There is no evidence that Kelly made a similar invitation to Arriba Soft.
28. Kelly, 336 F.3d at 818, citing Campbell, 510 U.S. at 579.
29. Kelly, 336 F.3d at 820, citing Campbell, 510 U.S. at 586-87.
30. Kelly, 336 F.3d at 821, citing Campbell, 510 U.S. at 591.
31. Kelly, 336 F.3d at 817.
32. Stewart v. Abend, 495 U.S. 207, 237 (1990).
33. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
34. See Georgia Harper, Google This: The Bottom Line, utsystem.edu/ogc/intellectual property/googlethis.htm.
35. Testimony of Paul Aiken on Behalf of the Authors Guild, House Committee on Energy and Commerce, Subcommittee on Commerce,Trade, and Consumer Protection, Hearing on Fair Use: Its Effects on Commerce and Industry, November 16,2005, p. 11: And anegotiated license could pave the way for a real online library something far beyond the excerpts Google intends to offer through itsGoogle Library program (Aiken Testimony).
36. The court in Field v. Google found that there is no evidence before the Court of any market for licensing search engines the right toallow access to Web pages through Cached links, or evidence that one is likely to develop.
The owners could argue that the Library Project might deprive them of the promotional value of their works, e.g., steering traffic away
from their websites were they to offer search capability. See Video Pipeline, Inc., v. Buena Vista, Inc., 342 F.3d 191 (3
rd
Cir. 2003),cert. denied, 540 U.S. 1178 (2004). Interpreting the fourth fair use factor to incorporate promotional value of this sort significantlylimits the utility of the fair use privilege because every work theoretically has some promotional value. Additionally, if a particularowner believes that a search index of the works it owns does have promotional value, it can simply opt-out of the Library Project. Incontrast, Video Pipeline did not permit Disney to opt-out of its service displaying film trailers.
37. Aiken Testimony, p. 8.
38. Aiken Testimony, pp. 8-9.
39. Aiken Testimony, pp. 10-11.
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40. See Tim OReilly, Search and Rescue, TheNew York Times, September 28, 2005.
41. See Siva Vaidhynathan, A Risky Gamble With Google, The Chronicle of Higher Education, December 2, 2005.
42. Some argue that while fair use might permit a library to make a digital copy of a work for archival purposes, it would not permitGoogle, a commercial entity, to make the archival copy for the library. This argument derives from cases such as Princeton UniversityPress v. Michigan Document Services, Inc., 99 F.3d 1381 (6 th Cir. 1996)(en banc) and Basic Books, Inc. v. Kinkos Graphics Corp.,758 F. Supp. 1522 (S.D.N.Y. 1991), where the courts ruled that commercial copy centers could not claim that their photocopying ofcoursepacks constituted a non-commercial use. In these cases, however, the copy centers often made hundreds of copies of a singlework in a manner designed to supplant the copyright holders rights. Here, by contrast, Google will be making just one copy of anygiven work for a library. If a library is permitted under Section 108(b) to make three copies of an unpublished letter for preservationspurposes, surely it can retain a preservation specialist to make those copies for it.
In any event, as a practical matter, if the library copy became a focus of the litigation, it is unlikely that a court would find the librarycopy to be infringing, but Googles index copy to be a fair use. Ultimately, the library copy is ancillary to the index copy; Googlemakes the library copy as consideration for obtaining access to the book for the purpose of making the index copy.
43. United States Copyright Office, Report On Orphan Works, January 2006.
44. Google arguably is causing a copy of the sentences to be made in the random access memory of the users computer. Thus, thelawfulness of this copy must be examined under the copyright laws of the users country.
Jonathan Band represents Internet companies and library associations on intellectual property and Internet pol-icy matters in Washington, D.C. He does not represent the parties in the litigation discussed in the article. Hereceived his B.A. from Harvard College and his J.D. from Yale Law School, and is an adjunct professor at theGeorgetown University Law Center.
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