Notes & Comment
Vol. 2005, No. 8
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Copyright
Google's Library Project: Good Deed or Copyright Infringement?
Google Inc., the world's internet search engine of choice, is now a brand name that it has morphed into a verb. How many times have you Googled today? Such phenomenal success breeds business pressure to grow, and one initiative undertaken by Google -- to digitize and make accessible on its commercial search engines content in several major public library collections -- has drawn strong criticism from publishers and authors. The plan has also brought claims of copyright infringement.
Background
On December 14, 2004, Google announced the Library Project, a venture with several major American and British university libraries and the New York Public Library "to digitally scan books from their collections so that users worldwide can search them in Google." The project involves scanning collections from Harvard, Stanford, the University of Michigan, Oxford and the New York Public Library and eventually integrate this content into its commercial search engines, making it available to Google users worldwide.
Google and officials at the participating libraries maintain that this initiative is a beneficial development and will provide, in the words of one university president, "universal access to the world's printed treasures [which] is mission critical for today's great public university." Presumably sensitive to copyright issues, Google speculates that the Library Project will benefit authors and publishers by "increas[ing] the visibility of in and out of print books, and generate book sales via 'Buy this Book' links and advertising." According to Google's press release, users can search and obtain the full text of public domain works, but only "brief excerpts and/or bibliographic data of copyrighted material." Some believe this "excerpt" strategy brings the plan within fair use under the copyright law and is not an infringement. However, the statute bans reproduction and/or distribution or display, among other things. Notwithstanding Google's excerpt distribution strategy, scanning itself raises concerns by some.
The problem for Google is that while executing a spectacularly lucrative business model, it made a decision to go ahead without getting permission from copyright owners. Practically speaking, how could Google get permission from every author with a book in the Harvard library collection? Fair question. There are copyright clearing agencies and publishing houses, but how could it be certain that all copyrights in the collection are covered? On the other hand, does practical difficulty allow it to exploit another's creative endeavor for commercial benefit without accountability?
The Litigation
On September 20, 2005, The Author's Guild and several authors holding book copyrights filed class action litigation in a Manhattan federal court attacking Google's Library Project as a copyright infringement. (The Author's Guild, et al. v. Google Inc., 05 CV 8136, U.S. District Court for the Southern District of New York). The 14-page complaint alleges one claim for copyright infringement ("[Google] made and reproduced for its own commercial use [certain copyrighted works]") and seeks damages, and injunctive and declaratory relief. The plaintiffs allege that Google derives 98% of its revenue from advertising and that Google's Library Project reproduces, distributes and displays copyrighted works for commercial purposes without permission from the copyright owners. The participating libraries are not sued.
What to Watch For
It's of course too early to evaluate the merits of the Google Library Project case or predict its outcome. On the surface, the plaintiffs have a credible infringement argument, while Google perhaps has a fair use defense that it only displays "brief excerpts" of copyrighted material to users. Google's fair use defense would be more persuasive if it had a less commercial stake in the Library Project.
This litigation will be one of the first major tests of copyright law in the digital age since the U.S. Supreme Court's Grokster decision last June. (See our Notes and Comment feature MGM v. Grokster: Curtains for Free P2P Music?). A secondary liability copyright infringement case concerning free peer-to-peer music file swapping technology, the Grokster defendants' fate turned on their troublesome conduct. Google's Library Project litigation, in contrast, involves solid citizen-litigants, claims of direct copyright infringement, a different standard of liability and will test anew the scope of fair use.
The two cases, however, do share a broad theme: when and under what circumstances may new and evolving commercial technologies, claiming substantial public benefit, use copyrighted content without the owner's permission? A fundamental principle reinforced by the Supreme Court in Grokster may well apply even here: copyright ownership is entitled to great deference but must at times yield to new (even commercial) technologies that have substantial non-infringing public purposes. Whether direct or secondary infringement, the case-by-case question in digital copyright continues to be: when must copyright yield and under what beneficial circumstances?
UPDATE: On October 19, 2005, the Association of American Publishers filed suit on behalf of several major publishing houses against Google Inc. in U.S. District Court in Manhattan alleging, among other things, that digital scanning of works still protected by copyright as part Google’s Library Project infringes author and publisher copyrights. The 36-page complaint seeks injunctive and declaratory relief. The McGraw-Hill Companies, Inc., et al. v. Google, Inc., Civ. No. 05 CV 8881 (October 19, 2005). Google continues to maintain that, to the extent copyrighted material falls within the scope of the Library Project, Google is engaged in fair use under the Copyright Act.
© Matthew Joseph 2005. Law Offices of Matthew Joseph, San Mateo, California, practices in the areas of intellectual property licensing, commercial real estate leasing, and corporate and business transactions. No legal advice is intended by the information provided herein and recipients should independently consult counsel before taking any action related to this subject matter.