Ad Hoc

The Authors Guild is
suing Google over Google
Print, an ambitious project to scan and make thousands of books
publicly searchable.

The Authors Guild, a society of published writers representing over
8,000 U.S. authors, charges that Google has not sought the approval of
authors to include their works in the program.

Google does allow copyright holders to exclude their books from the
program. However, traditionally, content users must have affirmative
authorization from a copyright owner to use the copyrighted material,
said Terence Ross, a partner and copyright law specialist at Gibson,
Dunn & Crutcher, a Washington, D.C., law office. “Merely saying that if
we don’t hear from you we assume it’s okay has never been accepted by
any court and I doubt it would ever be accepted,” he said.

Google said in a statement responding to the lawsuit that its
activities are consistent with the fair use doctrine under U.S.
copyright law and the principles underlying copyright law. Fair use is a
concept within U.S. copyright law that allows copyright material to be
used in limited circumstances, such as quoting parts of a novel for a
book review, without the permission of the author.

When users search the Google Print database, they find a “brief
snippet of text where their search term appears,” not the entire text,
Google explained in the statement.

Still, Google is copying entire works into its database. “It’s not
what’s delivered to the PC user that’s the copyright issue, it’s the
fact that they have copied the entire work in the first place,” said
Ross. “I don’t see fair use.”

If fair use doctrine doesn’t allow for copying entire copyrighted
works for use in publicly searchable indexes, then all web search
engines are in serious violation of copyright law. Just like Google
Print, getting your copyrighted website out of a search engine’s index
is an opt-out procedure. For the sake of consistency, shouldn’t the
Authors Guild take on web search engines too?

Update: Section 512(b) of the Digital Millenium Coppyright Act “limits the liability of service providers for the practice of retaining copies, for a limited time, of material that has been made available online by a person other than the provider.” Despite this section being intended for HTTP proxies, it may be applicable to the Google Web index. It means that if the content is already online, you can keep temporary copies. Since the books are not already online it looks like Google Print doesn’t have much of a case.