Google Print and the Fair Use Doctrine.

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Author: Pike, George H.1,2 pike@law.pitt.edu

Legal Issues

My son recently brought a book home from kindergarten--it was a rhyming book with pictures about dinosaurs that be thought was great. Being the family legal egg-head, however, I noticed the book's copyright warning: "No part of this publication may be reproduced in whole or in part, or stored in a retrieval system. …" I wondered if the last phrase might be the publisher's preemptive strike against Google and its controversial Google Print book digitization project.

Last December, Google announced its plan to scan millions of books from libraries around the world (see Barbara Quint's NewsBreak "Google and Research Libraries Launch Massive Digitization Project" at http://www.infotoday.com/news breaks/nb041220-2.shtml). When searchers key in words or phrases, the Goggle search engine finds books that match those search terms. Google's results present the search terms along with a sentence for context, bibliographic information, and links to booksellers or libraries. Google does not show any full pages unless the publisher provides permission.

Google has arrangements with several publishers to scan books into the Google Print database. When scanning books owned by libraries, however, Google does not receive copyright permission from the author or publisher. Not surprisingly. The Authors Guild and several individual authors recently filed a federal lawsuit against Google claiming that the company is "engaging in massive copyright infringement."

According to Google, scanning library materials is permitted within the fair use doctrine and "principles underlying copyright law. In its press release, Google reports that it links these "principles" to the Constitution's clause that copyright should "promote the Progress of Science and useful Arts." Google suggests that the print project provides a benefit to society as a whole by making this content widely available.

The fair use doctrine bas been challenged and scrutinized with the rise of digital content. Fair use is intended to be a limited exemption from copyright for specific purposes that benefit society, such as teaching, research, and commentary. The distribution of billions of perfect copies has made it more difficult to keep both the letter and spirit of the fair use doctrine in check.

The validity of Goggle's claim will rest on fair use's four factors test:

1. What is the purpose and character of the use--is it for transformative or nonprofit purposes?
2. What is the nature of the work being copied-is it factual and nonfictional or creative and fictional?
3. How much of the original work is being copied?
4. What is the effect on the market for the original work?

Google is likely to argue that even its scanning of the material is transformative, which would make it fair use. The purpose of scanning is not to reproduce the original content, but to make the content part of a massive index. A similar argument was upheld in the case of Kelly V. Arriba Soft Corp., which involved a database search engine that reproduced thumbnail copies of Web images as part of its search results. A commercial artist claimed that the thumbnail versions of his works were a violation of his copyrights. The court, however, found that these small images served an "entirely different function" than the originals, which served a public benefit through the search engine and within the realm of fair use.

But Google may have a special problem. While the artist's images were already on his Web site when captured by the search engine, Google is actively copying the content and placing it on the Web. It will be up to the court to determine whether this difference is significant enough to eliminate fair use.

With the Google Print project, only a limited amount of text is displayed in response to the search. But Google acknowledges that the entire work is being scanned into its index database. Normally, scanning an entire work would support a finding against fair use. However, Google could point out that the thumbnail images in Kelly v. Arriba Soft Corp. were actually copies of the entire work.

Some works of parody, such as 2 Live Crew's sendup of the song "Oh Pretty Woman," also incorporate the entire work, yet they are considered fair use. In this case, the work is not being changed the way it is with a parody. And unlike an image, a book can be separated into words, sentences, paragraphs, and so on. Traditional fair use has been more supportive of copying portions of text rather than the entire work.

Google has offered publishers the opportunity to opt out of the Google Print project by identifying specific books that can't be included. The publishers want an opt-in program that requires Google to obtain specific permission before a book can be added to its database.

Unfortunately, an opt-in policy points to the larger problem of how to deal with copyright-protected works where the rightsholder can't be located. This issue of "orphan works" was further complicated by the Copyright Term Extension Act, which extended copyright terms to as long as 95 years, long after the death or corporate demise of many copyright holders. The inability to use this content effectively--by Google for research or simply to make lost content available again--clearly hinders the "Progress of Science and useful Arts." Early efforts to explore this problem are underway in Congress, but a resolution remains elusive.

On Oct. 3, 2005, Yahoo! and the Internet Archive announced a similar program to digitize books and other archived content. The Yahoo! project, however, will only scan texts that are already in the public domain or for which it has received permission, which removes the copyright issues that Google is confronting. The materials would be searchable and available for download to computers, PDAs, and digital audio devices such as iPods.

Google argues that its program benefits authors and publishers by increasing access to their works. Most commentators have also supported the public benefit that the Google Print and Yahoo! programs provide by making difficult-to-access content more available. This would seem to be consistent with the spirit of the Constitution's mandate, but part of that mandate is that copyright owners should decide when and how their work is copied and who is allowed to do so. The ultimate test will be whether that spirit of the Constitution is enough to overcome specific concerns that arise from existing law.

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By George H. Pike

George H. Pike is director of the Barco Law Library and assistant professor of law at the University of Pittsburgh School of Law. His e-mail address is pike@law.pitt.edu. Send your comments about this column to itletters@infotoday.com.