Issue/News: Google Library

Ok- so pretty much everyone has written about Google Library, and my aim here isn't to inform anyone of anything (which is good, because when exactly no one reads your blog, you need to set your expectations relatively low)... my aim is to explore Google Library from a legal perspective, and more importantly, what the future implications of the Google Library controversy will be, namely, what if any limitations/regulations will be defined as part of regulatory structure that controls internet law.

First, a quick introduction to the sides of the case. There's a ton of material flying around the world wide web about Google Library, and some of the best stuff has been collected at DigitalKoans. Borrowing from these sources, I want to briefly mention the theoretical and legal underpinnings of the Google Library case through much more articulate sources than myself:

1. Theory- For a very clear analysis of the theoretical battle underlying the Google Library controversy, I suggest Columbia Law Professor Tim Wu's article in Slate, which is not only worth reading, but quoting large passages from, like this one:

"The idea that there is no tradeoff between authorial control and exposure is attractive. But it is also wrong. Individually, more control may always seem appealing—who wouldn't want more control? But collectively, it can be a disaster. Consider what it would mean, by analogy, if map-makers needed the permission of landowners to create maps. As a property owner, your point would be clear: How can you put my property on your map without my permission? Map-makers, we might say, are clearly exploiting property owners, for profit, when they publish an atlas. And as an individual property owner, you might want more control over how your property appears on a map, and whether it appears at all, as well as the right to demand payment... The critical point is this: Just as maps do not compete with or replace property, neither do book searches replace books. Both are just tools for finding what is otherwise hard to find. And if we really want to have true, comprehensive book searches, we cannot require that every author's permission be individually sought out. The book search engines that emerge would be a shadow of the real thing, just as a negotiated map would be a lousy one."

Google is a great example of where law and theory combine. On Lessig's most recent blog post, he argues, extending a doctrine of shifting intellectual property rights, that Google print is a step towards rightly viewing certain material as fair access (like Wu with the maps- your house or your book, either way we can search it). He bases this on the case of Causby, which treats air space above ones home as a commons with the advent of airborne transportation... the blog is in response to a post by James DeLong, of the Progress and Freedom Foundation (however, his reply to Lessig- quoted later- is a bit more concise and helpful).

So with regards to theory, on one side there is an argument that in light of technological advances, a search like Google Print does not infringe upon copyrighted printed sources in a way that detracts from the spirit of copyright.

2. Law- But in practice, will Google Print create the potential for copyright infringements? Attorney Jonathan Band doesn't think so, arguing that the opt-out policy of Google Print "does not turn 'every principle of copyright law on its ear.' Rather, it is a reasonable implementation of a program based on fair use. " He basis such analaysis on Kelly v. Arriba Soft, a case involving a company that allowed searches to be conducted for images on the internet- since the nature of the search engine did not specifically use such images for commercial purposes (Kelly's images were a small drop in the pool of images) and because it did not have a detrimental effect on the market (the search engine granted more expore, and the fact that the search brought up lower resolution thumbnails disqualified them for extensive commercial use). But wait, if it improves the market exposure of material, and qualifies under fair use, what problems are there? To look at two that DeLong points out:

1) A digital copy of each book goes to the participating library, and the only restriction is that it abide by copyright law. There can be no guarantee that the library will impose security akin to that adopted by Google.

2) The law has no doctrine that allows Google to be special. So what Google is allowed to do, others can do. The authors and publishers can legtimately object to having a huge burden of policing imposed on them.

I can see it being a scary notion that Google is making digital copies of every book from a fair amount of very, very large libraries. When you map my house, you use an image of that house, or in the case of satellite maps, a photograph. Cool- but that's NOT what Google Print does. The value of my house is not tied to that particular image- it has no market value in and of itself. Granted, neither do the excerpts that are created via a Google Library search, but the fact that Google creates two digitized copies of the material presents a huge risk. This weeks Businessweek provides an excellent summary of such fears.

This argument, although valid, does not necessarily find comfort in the law. Going back to the Grokster issue and safe harbor act, think of CDs, or CD burners, or DVD burners that can be used to copy a wealth of copyrighted material- those have very little protection barring their use- at least the Google Library project has a corporation and library institutions that have the master copies- institutions which are far easier to hold legally accountable (see the last post on the Grokster case).

The second argument, about the opt-out policy, seems far less pursuasive, namely because objection 1 didn't argue that there was a clear copyright infringement, simply a potential for abuse. So )*&^* what? How many libraries have you been to that have, lets say, a PHOTOCOPYING MACHINE... making every library prone to MASSIVE COPYRIGHT INFRINGEMENT ABUSE. So do you force every library to have an opt-in clause for each particular author? Of course not...

So in the end, it looks like Google Library will survive the legal battle it may be embroiled in over the next couple of years... perhaps the fact that the case takes a step into what Harvard Law Professor Jonathan Zittrain calls "terra incognita" will be a good thing. It is the best chance for what Lessig calls a "revolt" of copyright... and even if not a full fledged revolt, than it will at least give us a better idea of what the rules of battle are.