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Re: RE : More on Google

This article raises an interesting aspect of the whole Google digitization
project. In a way, it is unfortunate that this project is being
undertaken by a for-profit company, and not by some non-profit entity
organized and controlled through the library/educational community. The
claims of the publishers that one MUST get their permission before
digitizing seems to be somewhat overreaching for a number of reasons. First, such activities may constitute reasonable measures under both fair
use (section 107) and the library copying (section 108) provisions of the
Copyright Act. If the intended use is indeed permitted under one of these
sections, then there is no need to seek or gain such permissions as the
publishers are wont to demand.

On the other hand, the interposition of a for-profit entity, here Google,
makes the issue murkier. Certainly the section 108 exemption is lost and
most likely so is fair-use. Or at the very least, the claim for fair use
is weakened.

Wouldn't the whole issue be much simpler if this project was being led and
controlled by a bona fide non-profit activity? Keep in mind that even
under our current excessive copyright term, all of these works are
destined for the public domain, and it is quite reasonable to take
measures now in order to make these 'public domain to be' works permantly
accessible in a commons space.

What is the long-term opportunity cost for having Google involved in this
project? Is the library/educational/non-profit community now more likely
or less likely to undertake a project of this type. Given the reaction
from so many in the library community, I think it's less likely. For the
most part, Google is seen as some sort of savior, and most of the reaction
from the library community has been uncritical. One might even make the
claim that the main reason Google is even cooperating with the libraries
is to somehow enhance its ability to claim fair-use. And in the case of
works in the public domain, what is to stop a private vendor from wrapping
the works in technological protectiona and then claiming that unauthorized
access violates the anti-circumvention rules? Given the current state of
section 1201, not much.

Are these thoughts overly sceptical? Perhaps they are, but it makes up
for the decidedly uncritical response from the library community on this
Google project as well as the whole Google phenomena more generally. Is it
beyond the scope of the library/education/research community to devise an
outstanding internet search engine under the wrapping of an open source
license? I don't think it is. But by sitting on the sidelines and gawking
with amazement at just now neat-o Google is, we fail to think about other
ways of doing things that do not involve proprietary vendors who, in the
end, are only interested in making a profit. In the long run, the
library/education/research community should be looking at the whole Google
phenomena as a warning sign that we are not adequately protecting the
commons and and that we are conceding too much space to the private
market.

Sam Trosow
University of Western Ontario

_____

Declan Butler, Journalist, Nature wrote:

http://makeashorterlink.com/?P3B82146A

Nature 433, 446 (03 February 2005); doi:10.1038/433446a

Publishers irritated by Google's digital library
DECLAN BUTLER
Plan to digitize university library collections sparks copyright spat.
A spat is brewing between academic publishers and Google over the
Internet-search company's plans to digitize and index library collections
at major research universities.

Late last year, Google, based in Mountain View, California, announced a
decade-long project to scan millions of volumes at the universities of
Harvard, Stanford, Michigan and Oxford, as well as the New York Public
Library. The resulting archive would allow computer users worldwide to
search the texts online. But some publishers complain that they weren't
consulted by Google, and that scanning library collections could be
illegal.

Under the scheme, people searching with Google would find library volumes
relevant to their query at the top of their search results. Clicking on a
title would allow them to browse images of the full text of works in the
public domain. Only brief excerpts and bibliographic data would be shown
for material under copyright. Participating libraries would also be given
a digital copy of their collection.

Google describes the initiative as an extension of Google Print
(http://www.print.google.com), which is based on agreements with
publishers and allows the full text of books to be searched. Google
Print's results provide a brief excerpt of the text, together with a link
to publishers or booksellers that sell the book and to libraries that hold
it.

But Google has not yet struck any legal agreements with publishers, either
individually or collectively, for the research-library initiative, says
Sally Morris, chief executive of the Association of Learned and
Professional Society Publishers, the international trade body for
not-for-profit publishers. Few publishers would want to opt out of the
library scheme, Morris says - but they need to be asked to provide the
appropriate permission.

Copyright material generally carries some variation of a warning banning
the reproduction, storage or distribution of copies of the work without
the publisher's permission. Scanning a book constitutes making a copy and
so is only allowed with permission, say lawyers from several publishers.
They also argue that an exception under US law that allows libraries to
copy texts for preservation purposes would not apply in this case. Nor
would making copies for 'fair use', given that Google is a commercial
company.

A spokesman for Google says that it will "respect the rights of copyright
holders", and that it "prefers to work directly with publishers to bring
copyrighted books online". Google "has been working closely with
publishers to help them connect with more readers online", he adds.

Part of the uncertainty stems from the fact that there seems to have been
little discussion so far between Google and publishers, says Terry
Hulbert, head of electronic development and strategy at the UK Institute
of Physics. "Someone clearly needs to have a chat with the 800-pound
gorilla sat in the corner," he observes. "There is no question that Google
should have spoken to the learned societies and publishers beforehand.
Systematic digitization of copyright content is absolutely something they
cannot do without seeking approval of the rights holders."

Peter Kosewski, director of publications and communications at Harvard
University Library, says the library believes that the way Google intends
to handle copyright works is consistent with the law. Harvard is carrying
out a pilot with Google on 40,000 titles before making a decision on
digitizing its entire 15-million-volume collection. "We have a number of
questions that will be answered by the pilot project, and that includes
copyright issues," he says. "We think it is a great programme Google has
put together."

C 2005 Nature Publishing Group