A couple articles today discuss copyright concerns that Google is facing with respect to its "Library Project." Business Week reports in this article that a group of university publishers (the American Association of University Presses) has sent Google this letter (.pdf) about alleged "massive" copyright infringement. It seems that the dispute has arisen, at least in part, because the same publishers who now complain about the library project were previously invovled in -- and wer happy to take advantage of -- Google's offer to participate in its free "Print for Publisher" program.
The letter strikes me as somewhat alarmist. It calls what Google is doing "systematic infringement of copyright on a massive scale." The letter identifies 16 specific questions that it would like Google to answer (by June 20), but it really calls out only one legal concern with Google's project: the "eventual digitization of copyrighted works in the collections of the university libraries at Harvard, Michigan and Stanford." A subsidiary concern (or perhaps the driving concern -- it's hard to tell) is the fear that once the copyrighted works are digitized, potential infringing uses of the works (presumably by others) may become much easier.
Legally, there's no problem with Google's copying of books that have passed into the public domain. That much is clear. The obvious issue arises with Google's digitizing works that are still protected by copyright and whether this "copying" constitutes a fair use (and is thus "not an infringement" under 17 U.S.C. §107). Google says that with respect to copyrighted works, the text that will be returned after a search query would only be a snippet of the copyrighted text. (According to its website, "Google Print is designed to help you discover books, not read them from start to finish. It's like going to a bookstore and browsing – only with a Google twist.") Google points to the Kelly v. Arriba case for support. But the AAUP claims that the Kelly case is distinguishable on the facts, and that the copying of the work to Google's server in the first instance is plain and simple copyright infringement. Unfortunately, fair use is always a murky question and how it would play out in this exact scenario remains untested. Since success of the defense is difficult to predict it typically takes a defendant with financial means to litigate the question to conclusion. If anyone has the financial means to litigate the issue, Google would be such an entity.In addition to the BW article, the Chronicle of Higher Education published this article which also discusses the letter from the AAUP. The Chronical quotes Google's Adam M. Smith (a senior business product manager) who explains that Google has "gone out of [its] way" to have an open and receptive conversation about the project with many parties. It remains to be seen how the negotiations will work out, but I would imagine Google is not surprised by these concerns and has thought through these questions before it undertook this digitization project.
One final note: the AAUP's letter concludes with a "call" to
"all members of the university community -- students, faculty, and administrators -- to respect the obligation of university presses to strike a balance between the need for access to the information they publish, and the twin imperatives of protecting the legal rights of their authors and recovering publishing costs." (emphasis added)
If the university publishers truly want a "balanced" copyright system, then it seems to me that what Google is doing is more in accord with that balance than not. The rights bound up by copyright have become so deep and broad over the 200+ years since the passing of the first copyright act, there certainly is a need for more balance in the system. The university publishers' economic fears may not be wholly unwarranted, but I think they are chasing the wrong tail. Instead of grasping at an out-dated method of revenue generation, they should embrace new digital technologies and find a way to get their important publications into the hands of as many readers as possible. I simply don't believe in the harm of displaying a small snippet of text to a person who is herself looking for works containing those key words, and then directing that potential buyer to the source for those writings? Wouldn't this actually help the publishers by driving more demand for their publications? (Think: Wilco.)
{UPDATE: Here's another article on the topic from the NYT.}