Google Dealt Blow in Book Scanning Lawsuit

[Shaggy]

Originally Posted by Ninjalawyer

Generally, I think this book scanning project is good for Google, good for authors and good for society.

Originally Posted by murraypaul

But not actually legal.

Which says a lot about the current state of copyright law.

[plib]

Originally Posted by Shaggy

Which says a lot about the current state of copyright law.

"What's good for Disney is good for America".

[Ninjalawyer]

Originally Posted by murraypaul

The purpose is commercial though, Google aren't doing this for the good of humanity, but for their own commercial gain. In the same way that MegaUpload/TPB/etc... didn't make money directly from enabling infringement, but did make money from the advertising revenue driven by allowing the infringement.


That is a reasonable point.
Although I'm pretty certain their end goal is to sell copies of books that are otherwise not available.

I agree, Google is doing this because it allows them to sell more ads. That's the reason they offer anything for free. However, their motivation is only one factor (if it's a factor at all) in the determination of a fair use defense. Prior to Google and the Authors Guild signing an ill-fated settlement agreement, the case was set to answer some very fundamental legal questions about fair use in the digital era.

We can argue about whether what Google is doing is fair use, but neither of us can easily say whether or not it's copyright infringement because it's not clear one way or the other.

Personally, I don't care what Google's motivation was if the result is broader access to knowledge for me and the potential for more money for authors.

[bgalbrecht]

I didn't read the entire article from The Awl, I stopped after all of the errors describing how copyright used to work in the US:

The original US copyright laws, copied almost exactly from the British Statute of Anne (1709), covered books, maps and charts for a maximum of 28 years: 14 to begin with, plus another 14 if the author survived the end of the first term.

and talking about the Bono copyright act:

Had the various alterations to copyright law never been made, it would now be possible to quote, reprint, copy or reuse anything published up to 1981 or so for free.

and

The Copyright Act of 1976 created yet another terrible tangle by requiring authors of works published between 1923 and 1963 to file for copyright renewal. Absent the required renewals, those works have fallen into the public domain. And the renewal records from this mostly pre-computer period are a total mess, apparently. There is no authoritative central registry of copyright holders for these so-called "orphan works."

Prior to the switch to automatic copyright for life+50 years to match the Berne convention in 1976, the US copyright laws always required registration for a term, plus the ability to renew the copyright for a second term, it wasn't based on the author's life at all. The 1976 act did extend the term of existing copyrights from a maximum copyright term of 56 years (28+28 years) to 75 years. If copyright term had not been lengthened retroactively, everything written before 1955 would now be in the public domain, and only things between 1955 and 1983 not explicitly renewed would be in the public domain.

I wouldn't say that the renewal records from before 1978 are a total mess, although there is no authoritative central registry, the databases created from the digitization of the copyright renewal records by Distributed Proofreaders are good enough for most people needing to determine which printed works are in copyright. If Congress wanted a central registry, they could certainly fund the creation of one, I suspect it could be done for a few million dollars.

Anyway, since the author of the article totally didn't understand how copyright used to work, I question how accurate the discussion about Google's scanning and indexing books is.

[Kali Yuga]

Originally Posted by Ninjalawyer

I would suggest avoiding such definitive statements like your first sentence, as it's certainly not clear that Google has violated millions of copyrights....

It is screamingly obvious they've violated a huge number of copyrights.

That's why the settlement agreements keep ketting shot down, because they invert the very structure of copyright law, without any legal authority to do so.

If they stopped at search, that might fall under fair use. But they are also planning to distribute those ebooks (see below or read the amended settlement agreement -- Article II § 2.1), which is a direct violation of copyright.

The US has no laws that deal with orphaned or out-of-print works. As such, Google has absolutely no right whatsoever to distribute those works. Further, this is not something the courts should sort out, it should be up to Congress. Legislature writes the laws, the courts should only decide whether or not those laws are constitutionally sound.

Orphan works do need to be fixed, and the final structure could look very similar to what Google is in fact proposing. But none of the parties to the settlement or lawsuit have the legal authority to do so, nor is there any indication whatsoever that Google plans to limit their scanning project to orphaned works. They are sucking up entire libraries and hoping no one stops them.

Originally Posted by ninjalawyer

As far as opting out goes, Google actually has a very good fair use argument and may not have to provide an opt-out at all.

They do not have the legal right to distribute the books they've scanned. Thus, opt-out is not a "good option," it's an illegal option as it violates those copyrights.

Originally Posted by ninjalawyer

To be clear, Google is not just making books available for free....

It never was. Their plan has always been to sell the books and/or use them to generate ad revenue.

The amended Google Books Settlement explicitly says that Google has the right to, and I quote, "sell subscriptions to the Institutional Subscription Database, sell individual Books, place advertisements on Online Book Pages, and make other commercial uses of Books, all as further described in this Amended Settlement Agreement."

That doesn't sound like "search only" to me. Or a lot of authors.

Originally Posted by ninjalawyer

their motivation is only one factor (if it's a factor at all) in the determination of a fair use defense.

Not really.

I can quote a section of a copyrighted law when writing a review of the content. However, my purposes for writing the review can be 100% commercial in nature and still be classified as fair use.

Google's motives are not relevant. They can swear up and down that they are not evil, and they only want to improve access or preserve the works, and can be 100% honest on these counts. It's still copyright infringement on a truly massive scale.

[Ninjalawyer]

Originally Posted by Kali Yuga

It is screamingly obvious they've violated a huge number of copyrights.

That's why the settlement agreements keep ketting shot down, because they invert the very structure of copyright law, without any legal authority to do so.

You can keep saying it's obvious (screaming or otherwise), but from a legal perspective, it is anything but. There's actually very good and very interesting arguments on both sides. You might not agree with what Google has done, but it's not clearly illegal. That's why a lot of people (myself included) were looking forward to the case prior to the first settlement.

Originally Posted by Kali Yuga

The US has no laws that deal with orphaned or out-of-print works. As such, Google has absolutely no right whatsoever to distribute those works. Further, this is not something the courts should sort out, it should be up to Congress. Legislature writes the laws, the courts should only decide whether or not those laws are constitutionally sound.

Orphan works do need to be fixed, and the final structure could look very similar to what Google is in fact proposing. But none of the parties to the settlement or lawsuit have the legal authority to do so, nor is there any indication whatsoever that Google plans to limit their scanning project to orphaned works. They are sucking up entire libraries and hoping no one stops them.

They do not have the legal right to distribute the books they've scanned. Thus, opt-out is not a "good option," it's an illegal option as it violates those copyrights.

For orphaned works under the revised settlement agreement, any unclaimed funds are to be allocated proportionally to the United States, Canada, the United Kingdom and Australia, and that these funds will be disbursed to literacy-based charities and the reading public.

If the works truly are orphaned, is it wrong if no one lodges a complaint? Is it restricted if there's no law dealing with it, or implicitly permitted? In any event, Google and the Authors Guild thought they could craft a legally binding settlement agreement that encompassed orphaned works, and that a court would approve. Regardless of that outcome, its nice that this may actually spur more development of an orphan book discussion in the U.S.

I would also point out that the Department of Justice has itself acknowledged that a settlement agreement with a properly defined and adequately represented class of copyrightholders might be appropriate. So they also didn't see it as screamingly obvious as you that Google may be perpetrating the greatest copyright fraud in the history of the U.S.

Originally Posted by Kali Yuga

I can quote a section of a copyrighted law when writing a review of the content. However, my purposes for writing the review can be 100% commercial in nature and still be classified as fair use.

Google's motives are not relevant. They can swear up and down that they are not evil, and they only want to improve access or preserve the works, and can be 100% honest on these counts. It's still copyright infringement on a truly massive scale.

I totally agree, it could be copyright infringement on a massive scale. Or it might not be; I don't think either of us can really say definitively.

[murraypaul]

Originally Posted by Ninjalawyer

We can argue about whether what Google is doing is fair use, but neither of us can easily say whether or not it's copyright infringement because it's not clear one way or the other.

If what they were doing was permitted fair use, why would they need to reach a settlement agreement?

I would also point out that the Department of Justice has itself acknowledged that a settlement agreement with a properly defined and adequately represented class of copyrightholders might be appropriate. So they also didn't see it as screamingly obvious as you that Google may be perpetrating the greatest copyright fraud in the history of the U.S.

Again, seems like they are saying that without a settlement agreement, it wasn't legal.

[murraypaul]

If the works truly are orphaned, is it wrong if no one lodges a complaint? Is it restricted if there's no law dealing with it, or implicitly permitted?

Well wrong is a moral judgement rather than a legal one, and as I've said, I tend to agree that it might be a good thing.
There is a law covering the copyright status of orphan works, they are covered by the same law all other works, and are copyrighted.
If the law needs changing to make an exception for orphan works, then it should be changed. But companies cannot be allowed to simply pick and choose which bits of the law they will obey. It is the job of the legislature to define the law, not Google's.

[murraypaul]

For all those leery of Amazon's increasing eBook market share, this should be a lot more disturbing: (from Ninjalawer's earlier link)

The Amended Settlement Agreement does nothing to diminish Google’s unique position in relation to the exploitation of orphan works. However, it does change the institutional framework in ways that may become significant if orphan works legislation is ever enacted. Two ironies are worth considering here. The first irony of the settlement is that, whereas a fair use ruling would have substantially mitigated the orphan works problem for all potential entrants into the field of digital book searching, the Amended Settlement Agreement only solves that problem for Google—thus Google is better off compromising than winning in this respect.152 Indeed, it is Google’s potential orphan works monopoly that has attracted some of the sharpest criticism. Professor Pamela Samuelson argues that “the settlement would, in effect, give Google the exclusive right to commercially exploit millions of orphan books.”153 The Internet Archive, a non-profit organization founded to build an Internet library, also protests that the Settlement “effectively limits the liability for the identified uses of orphan works of one party alone, Google, Inc.”154 Professor James Grimmelmann concludes that “Google’s extraordinary market power under the settlement will come from its unique lock on orphan works.”155

[Kali Yuga]

Originally Posted by Ninjalawyer

You can keep saying it's obvious (screaming or otherwise), but from a legal perspective, it is anything but.

Again: if Google was only doing search, it would be a big question about fair use.

Or: If the libraries were making archive copies for internal use, that would be acceptable.

But again: The settlement agreement explicitly grants Google the right to sell the scanned books. That clearly goes beyond anything that could conceivably be considered "fair use."

Originally Posted by Ninjalawyer

For orphaned works under the revised settlement agreement, any unclaimed funds are to be allocated proportionally to the United States....

That's nice.

But none of the parties involved have the legal jurisdiction or rights to modify US copyright law. As the DoJ and judge in the case recognize.

Originally Posted by Ninjalawyer

If the works truly are orphaned, is it wrong if no one lodges a complaint? Is it restricted if there's no law dealing with it, or implicitly permitted?

The law explicitly bars it. If you do not have the permission of the rights holder, and it's not in public domain, you can't distribute it. Period, finito, done.

The Author's Guild is not the rights holder for orphaned works, and is not authorized by those rights holders to negotiate, thus it cannot grant Google the right to distribute those works without their permission. That's one reason why the judge in the case suggested that opt-in would probably fix the settlement.

Originally Posted by ninjalawyer

I would also point out that the Department of Justice has itself acknowledged that a settlement agreement with a properly defined and adequately represented class of copyrightholders might be appropriate....

They said: "A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement."

The judge in the case also shot down the amended settlement last March, stating:

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action which to was brought against defendant Google Inc. challenge its scanning of books and display of "snippets" for on-line searching - - to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

Seems pretty clear to me that Google has infringed copyright.

[murraypaul]

Originally Posted by Kali Yuga

Again: if Google was only doing search, it would be a big question about fair use.

Or: If the libraries were making archive copies for internal use, that would be acceptable.

But again: The settlement agreement explicitly grants Google the right to sell the scanned books. That clearly goes beyond anything that could conceivably be considered "fair use."

The New York Law School Review agrees:

Google’s permitted uses under the settlement go well beyond the most favorable fair use that could plausibly be imagined

[Ninjalawyer]

Okay, think I'm now willing to agree with Kali Yuga and MurrayPaul on this one; the scanning of millions of books was probably fair use (although maybe not since it wasn't litigated), but the provisions in the settlement agreement about orphan works isn't. It's unfortunate though, because I think the system the revised settlement agreement (an orphan book registry) would have done a lot to eliminate the problem.

I think some of my confusion was around the fact that I don't believe Google is actually doing anything with orphan works since the last settlement agreement got shot down, and has effectively abandoned that aspect of the project. That, plus the fact that it may not even be proper for Google to scan millions of books, added to the above.

[stonetools]

I think that Google is probably on the wrong side of the law here too, which leads to what Google should do going forward. It seems to me that they should settle on the best terms they can get and seek a legislative solution. As the SOPA battle shows, its not like they're without resources there. They've got platoons of lawyers, lobbyists, and legislators on call.
I think Google's idea is good but maybe a governmental or non profit agency should do it. If Google or other for-profit corporation does it, may it should be done pursuant to a specific and narrowly tailored legislative scheme.

[Kumabjorn]

Buy scanning and making so many books available for search online it can be argued that they are providing an altruistic good within the fields of linguistics and literature if they also provided a search engine that enabled researches to do concordance tables. Whether their lawyers are smart enough to bring forward such an argument is a different story though.