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Copyright Law and the New Library of Alexandria
Published By IP Law 360 March 30, 2006

Constructed in the early 3rd century BCE, the Royal Library of Alexandria, Egypt came to hold tens of thousands of manuscripts in its ten great halls. The great library, destroyed by fire or war centuries after its creation, has come to symbolize wisdom, knowledge, information and the accumulated genius of the Hellenic peoples who created it. Two thousand years later, mankind is creating a virtual Library of Alexandria—a digitized collection of countless works of art including books, music, images, videos and more. Only one obstacle threatens this modern age wonder of the world, and it isn't technology or money. It is copyright law.

Introduction

There is an international race today to build an online library of books, film, images, manuscripts, cartoons, historical collections, music, Web pages and more. Since 1996, the Internet Archive, located in San Francisco, Calif., has been collecting snapshots of the World Wide Web, software, movies, books and audio. Internet search giant Google announced plans in 2004 to digitize books and documents from a handful of libraries; and other software giants, including Microsoft, Yahoo and Amazon, have announced similar plans. In the fall of 2005, the European Commission announced plans to place six million books, films, photographs, manuscripts and other cultural works online by 2010.

But, at what point does this unprecedented access to content trespass upon protected legal rights? Do the current efforts constitute a major step toward bringing a world of information closer to users, as educators advocate? Or, are the publishing houses right when they argue that such efforts serve only to facilitate massive copyright infringement? The answers to these questions lie in the murky intersection between copyright law and the virtual publishing world.

The Google Print Library Project

One example of the tempest that envelops these questions concerns Google's so-called Print Library Project ('Google Print'), which Google now refers to as 'Google Books Library Project—an Enhanced Card Catalog of the World's Books.' Google Print is a virtual library with many of the same search capabilities as the Google search engine, and is available to the public for no charge. So far, the libraries of the University of Michigan, Harvard University, Oxford University, Stanford University and the New York Public Library have agreed to make available their entire collections for Google to scan and post on its site. In exchange, the libraries will receive scanned versions of their entire collections.

The Google Print site operates similarly to the Google search engine. Users can enter key words, and Google Print displays relevant matches found in its virtual collection of books. In response to a user's search, Google provides only snippets of text surrounding the search terms entered. Google also displays a Sample Pages View if the publisher or author has given Google permission, or a Full Book View if the book is out of copyright. Users may review the information provided and decide whether to further explore or purchase the book. For works still under copyright protection, users are directed to sites at which the books are available for purchase. Anyone who wishes to access Google Print must open a user account so that their use can be monitored for copyright compliance reasons. Copyright owners who do not wish to have their works displayed as part of Google Print may opt out.

Legal Challenges to Google Print

The Author's Guild and several individual authors have filed a class action copyright infringement suit against Google, claiming that by reproducing copies of works not in the public domain without first obtaining permission from copyright holders, Google is engaging in mass copyright infringement. The complaint cites Google's constructive knowledge of the alleged unlawful nature of its copying and Google's profit motive in creating Google Print. The plaintiffs claim that Google's plan for continued copying and distribution of their copyrighted works will cause them irreparable harm by depriving them of the right to control the reproduction and/or distribution of their works and to receive revenue from these activities.

The McGraw-Hill Companies and several other publishers have filed a separate action against Google similar to the Author's Guild suit. Like the Author's Guild, the publishers claim that Google Print violates their exclusive rights as copyright holders because it entails the copying, distribution and display of works still protected by copyright.

While copyright owners who do not wish to be a part of Google Print may opt out, Google's opt-out mechanism alone may not be enough to shield it from liability for copyright infringement. Reproduction of a copyrighted work without permission is infringement. Even where fair use is an available defense, the copying at issue is still infringement. The fair use defense merely makes infringement excusable under certain circumstances. Google Print has not obtained the permission of copyright holders before scanning the works it will be posting on its site. Instead, it has replaced the request for permission with an offer of opting out.

Although the availability of an opt-out measure has helped to protect Google from copyright liability for its cache of Web pages, it may not have the same effect for Google Print. The difference lies in the nature of the subject matter being copied. Web pages are publicly available free of charge. The revenue associated with Web pages is based upon traffic, not copying or licensing content. Literary works generate revenue through the sale of copies or other access to their content. Reproduction of them without permission might interfere with their market presence and profitability. Had Google purchased or obtained permission to make electronic copies from authors and publishers, it is unlikely that it would be in the litigation it now faces.

The snippets of copyrighted text and the book cover images that Google displays to searchers are de minimis samples, not unlike those available on Amazon.com, iTunes and other sites whose display of copyrighted material generally has been accepted as noninfringing. As with Amazon and iTunes, Google's snippets are there to aid searchers in determining whether or not the work in question is something of interest to them. At the end of the day, therefore, the search and index functions of Google Print may well be found to promote the goals of the copyright law and the fair use exception because the Google search results do not supplant the need for the original books and they benefit the public by enhancing access to works of art.

As one considers issues of whether and where liability should attach in this context, it is worth noting who the players are in this story. The major players in this dispute are some of the largest publishing houses in the world—many of whom earn substantial revenue in the publication and distribution of classic works of literature that are in the public domain. Educational sales of public domain works that are the staple of literature courses around the world might be undercut by the existence of Google Print, which offers students an alternative to purchasing copies of these works. If Google is allowed to continue on this course, the reliable revenue cushion associated with conventional publishing models might be threatened and publishers might have to depend on new works for a substantial portion of their revenue. The existence of Google Print might also weaken the role of the large publishing houses as the primary avenue of distribution for authors. Small, independent publishers and entrepreneurial authors will be able to market their works directly to consumers without the need for a publishing house to act as an intermediary.

Beyond Google Print

If the past is prologue, courts will continue to seek the right balance between technical innovation and content protection.

In Sony Corp. v. Universal City Studios, Inc., the court held that Sony's distribution of a device that was capable of infringing uses did not create secondary liability for copyright infringement, because the device was capable of substantial noninfringing uses. In reaching its conclusion that 'time shifting' of television programs was fair use, the court opened the gates for a whole new video sales and rental industry.

In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the court held that although the Grokster peer-to-peer software was capable of substantial noninfringing uses, Grokster was nevertheless secondarily liable for copyright infringement. Unlike Sony, Grokster knew that its subscribers were illegally copying copyrighted material and Grokster encouraged its subscribers to do so. The court reconciled its Grokster and Sony decisions by stating that the bases for liability in the two cases were different. Sony addressed liability for the mere distribution of a product that was capable of both infringing and noninfringing uses. Grokster addressed acts that went beyond mere distribution, by an actor whose purpose and source of profit was third party copyright infringement. It was Grokster's bad faith intent and illegal objective that led to a finding of copyright infringement.

Unlike Sony and Grokster, Google Print does not enable third parties to copy protected works. Thus, secondary liability for third party infringement is not the issue in these cases. Maybe Google's intent will be a factor in the court's evaluation of Google's fair use defense. What the cases do have in common, however, is that they present the opportunity and expectation that copyright owners, technology companies and the courts will devise legal means of distributing copyrighted content over the Internet and/or making that content accessible to the public.

Conclusion

The more things change, the more they stay the same. In the inevitable march to digitizing and indexing works of art and culture, courts will continue to balance the interests of content owners and the public by using the analytical tools of fair use and intent. And one day, a great virtual library will exist and it will hold the wisdom, knowledge, information and the accumulated genius of the people who created it over thousands of years.


This article has been reprinted with permission from the March 30, 2006 edition of IP Law 360 . © 2006, Portfolio Media, Inc.

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