Wednesday, October 19, 2005

Google and Fair Use

Publishers Sue Google Over Scanning Plans
Google plans to scan books so that they can be searched, "A few sentences from each book would be viewable, but could not be printed or downloaded."
Federal copyright law gives the owner of a copyright -- either the creator, or the employer of a creator -- the exclusive right to copy and distribute the work. However, others may copy the work if it is a "fair use.":

. . .the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
. . .

Applying these factors to GooglePrint... the case could go either way.

Nature of the use- Google is working with libraries. The goal of the libraries is to provide a public service: having one quick and convenient way to find most written material. Google could claim it has the same goal, but Google also has a commercial use: selling advertisements connected with the search results. Google is not selling the copyrighted works, but it is indirectly profiting from them.
The end use of the copyrighted work – by those who search for quotes – is likely to fall under fair use of criticism, comment, et cetera. Google could argue that making other people's fair use of material easy to do (without enabling non-fair use copying of whole books) is a fair use purpose itself. I would be sympathetic to this argument.

Nature of the copyrighted work- Since there are so many books to be scanned, it is hard to weigh this factor.

Amount used- Here, Google is both coping the entire work and only small pieces. Google scans and saves the entire work, it uses the entire work in its service, because the entire work can be searched. However, only small portions would be available to the public. Personally, I would see the use as being only small portions, but how a court would decide this factor is unpredictable.

Effect on market value- Here, Google argues its service would be beneficial to authors and publishers, helping promote their books. However, there are two markets to consider, 1. the market for the book (which will probably not be changed much by displaying short bits on a search) and 2. the market for book searching services. The authors or publishers could claim that their is a market for being able to search books, a market they should be able to profit from. I find this argument very weak because no one author or publisher has any expectation to be able to profit from the searchability of their book. The service of a book search is only valuable when a large number of books are searchable. The benefit of the service grows the more books that are added.

After reading some court opinions that go through the factors, one could come to the conclusion that a judge first decides the case and then the factors fall into place. If I were I judge, I would find it hard not to do the same thing with GooglePrint.

I would look to the ultimate purpose of copyright law, as enshrined in the Constitution, "To promote the Progress of Science and useful Arts." The end goal is to have the greatest production and distribution of useful works. The basic idea of copyright is that by giving authors a monopoly on their work, it will encourage the creation of more works, ultimately benefiting the public.

Applying this basic principal to GooglePrint, it is clear that Google's use is fair. The public benefit to having a centralized searchable database of the most significant written works far outweighs any minuscule incentive for authors to write more because of the (possibly non-existent) added profit they will see from the searchable book market. It is unlikely that a market for a centralized searchable database of written works would be possible without a fair use exception, leaving the public, and the authors, worse off.

The authors fighting GooglePrint try to make a different case to the courts and the public. They do not see copyright as a tool for society to advance science and the arts, they see copyright as protecting a property right over the works they produce. They think because they wrote the original words, they own those words in such a way that no one else can use them without permission. Sadly, many people buy into this moral-property-rights argument. We now have a copyright length (life+70 years) that cannot be justified as good public policy or efficiency, but can only be justified by believing an author has a nearly permanent monopoly property right in the work.

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