In response to:
Books@Google from the October 19, 2006 issue
To the Editors:
Jason Epstein writes, in “Books @ Google,” [NYR, October 19], that Google’s creation of a searchable database of copyrighted texts without the permission of the copyright holders cannot constitute “fair use” under US copyright law because the creation of such a database “violates the provision of copyright law that forbids copying more than a brief passage.” There is no such provision.
It is true that courts consider the amount of the copyrighted material used in determining whether a use of copyrighted material without permission is “fair use,” but there is no bright line to be drawn simply based on amount. What matters rather than sheer amount is how much the alleged infringer’s use of the copyrighted material can serve as a substitute for the copyright holder’s potential uses of it. A small excerpt might constitute the essence of a text, and, if so, a court is far more likely to find use of that small excerpt to be an infringement than use of an entire text that does not give away the essence of that entire text. How could use of an entire text not give away the entirety of the text? The library project provides a good example: Google might have to use the entirety of texts to create a database capable of usefully searching those texts, but the user will not have access to the texts (other than the snippets elicited by their search requests) through Google if the copyright holder denies Google the permission to provide them. Perhaps such snippets could give away the essence of some books (and for this reason Google has left dictionaries out of its library project), but I cannot imagine that the number of such works would be more than a small portion of all the works Google plans to digitize.
Of course, courts consider factors other than the amount of appropriated text in making their fair use determinations, and those other factors are far more important than the amount. Most importantly (but of course not exclusively), courts focus on market impact. There is almost certainly copyright infringement if a challenged use of copyrighted work adversely affects the sales by the copyright holder of the copyrighted work. Obviously, the more the appropriated text can serve as a substitute for the entirety of the copyrighted work, the more likely it is to cause the copyright holder to lose sales.
Associate Professor of Law
Case Western Reserve University School of Law
To the Editors:
In his encomium to Google, Jason Epstein flicks a dismissive hand at the legal action which publishers and authors have undertaken in an effort to bring Google’s library project into compliance with US copyright law. He also mischaracterizes that project as an “utterly heroic…effort to digitize the public domain contents of the books and other holdings of major libraries.” Were Google’s activities limited to public domain materials, neither the publishers, nor the Authors Guild, would be in court.
In line with its self-stated mission “to organize the world’s information and make it universally accessible and useful,” Google is now engaged in making digital copies of the entire collections of some of this country’s most prestigious academic libraries: Harvard, Stanford, the University of Michigan, and the institutions comprising the University of California. It was only a matter of time before Google focused its ambitious vision on the books and journals housed in these libraries. They are the sum total of who we are, how far we’ve come, and where we’re headed. Former Librarian of Congress Daniel Boorstin said it better than anyone I know: “Books are the main source of our knowledge, our reservoir of faith, memory, wisdom, morality, poetry, philosophy, history, and science.”
There is no doubt that Google has the creative vision and resources to carry out this monumental task. Nor is there any question about the value of making lesser- known and out-of-print books readily accessible and searchable, giving individuals and institutions an opportunity to make more informed choices about contents before committing to a purchase, bringing the works of little-known authors to a whole new audience. But Mr. Epstein completely misses the point when he says that “lawyers for Google and the publishers will continue to exchange Talmudisms on this conflict until book publishers decide to enter the digital world to everyone’s advantage….” We’ve got news for Mr. Epstein—publishers are already planted in the digital world with both feet! Other players, including Yahoo, Microsoft, Amazon, Adobe, the Internet Archive, as well as the publishers themselves, are currently engaged in projects and strategically planning others to make works accessible, searchable, and available to the broadest possible audience on the Internet without abandoning copyright protection.
The key question is rather: Does Google have the right to make complete copies of someone else’s creative work for its own financial gain, infinitely enhancing its advertising revenue, without permission from the work’s creator and without sharing any of the benefits it will derive? We think not! We object to Google’s library project not because of its lofty goals, but because of its shoddy business model—a business model which assumes that a $120 billion, profit-making corporation can use its size, power, and image to expropriate rights and property that belong to others and then add insult to injury by telling them it’s for their own good.
Google is doing it right in Europe by obtaining permission from authors and publishers before digitizing their works. Google is doing it right here by licensing content in highly publicized arrangements with the Associated Press and Viacom. Google is even doing it right with individual publishers who have opted to make some of their works available for digital search. Google is not doing it right in the library project! Instead, it presumptuously assumes it can copy complete works still under copyright without obtaining the permission of the copyright holder, claiming its actions fall under the rubric of fair use because it will only show “snippets” of the work to searchers. “Snippet” is Googletalk, not a legal term. While it is possible for a library patron to copy a portion of a book under fair use, Google cannot claim that patron’s right. The word “snippet” is thrown around to distract people from what Google is really doing—reproducing entire copyrighted works for financial gain without permission. This is emphatically NOT fair use. Oh yes, and Google also neglects to say they’re making another full copy of the work, without permission, and giving it to the library as “payment” for being able to copy the library’s entire collection. Using someone else’s work as “currency,” without permission, has never been a fair use.
If the perfect search engine is, as Google’s co-founder Sergey Brin once described it, “like the mind of God,” then let it be used in ways that nurture and support the creative genius that feeds it, allowing writers and their publishers, photographers, visual artists, composers, and other creative spirits to benefit from their own work, just as Google benefits.
President and CEO
Association of American Publishers
Jason Epstein replies:
Professor Friedman believes that fair use extends to entire texts provided the copied material does not compete with the protected work. Ms. Schroeder insists that this is “emphatically NOT fair use.” Both claims are half true: there is no statutory definition of fair use but courts will almost surely agree with Ms. Schroeder of the Association of American Publishers that entire texts may not be copied. I wrote that this quarrel will be moot when book publishers follow music publishers into the twenty-first century by permitting readers to download copyright material for a fee. This will require a coordinated effort by publishers to establish fees, search and security protocols, and so on, a joint task perhaps for the AAP and the Authors Guild to the inestimable benefit of their membership and the reading public.