Re: More on Google Suspends Scanning Copyrighted Works -- ForNow

[Peggy Hoon <peggy_hoon@ncsu.edu>]

Limiting my comments to the copyright law portion only, I would correct
the statement that the libraries would "be within their rights to scan the
books and make an internal copy."  Section 108(1)c of the Copyright Act
only permits Section 108 libraries to copy entire published works for
replacement purposes if their copy is damaged, deteriorating, lost,
stolen, or in an obsolete format and only if they have determined that an
unused replacement cannot be obtained at a fair price.  Furthermore, if
they make a digital copy, that copy cannot be accessed outside the
premises of the library.

That only leaves Section 107, fair use, as potential authority for
digitizing their copy of a book.  The first action- copying an entire book
- is what is in controversy here and that act is almost certainly beyond
the scope of fair use.  The second act - transmitting the "snippets" - is
another thing altogether.

And even if the library was within its rights to digitize an entire book
(under the 108 conditions above), the legislative history of 108
specifically states "It would not be possible for a non-profit
institution, by means of contractual arrangements with a commercial
copying enterprise, to authorize the enterprise to carry out copying and
distribution functions that would be exempt if conducted by the non-profit
institution itself."

Peggy
-- 
Peggy E. Hoon
Scholarly Communication Librarian
Special Assistant to the Provost for Copyright Administration
North Carolina State University Libraries
Raleigh, NC  27695-7111
919.513.2045
919.513.3553 (fax)
peggy_hoon@ncsu.edu


> From: Liblicense-L Listowner <liblicen@pantheon.yale.edu>
> Reply-To: <liblicense-l@lists.yale.edu>
> Date: Sat, 13 Aug 2005 09:37:06 -0400 (EDT)
> To: <liblicense-l@lists.yale.edu>
> Subject: More on  Google Suspends Scanning Copyrighted Works -- For Now
> 
> Of possible interest; from David Farber's "Interesting People" list.
> 
> ---------- Forwarded message ----------
> From: Tim O'Reilly <tim@oreilly.com>
> Date: August 12, 2005 5:23:04 PM EDT
> To: dave@farber.net
> Cc: Ip Ip <ip@v2.listbox.com>
> Subject: Re: [IP] Google Suspends Scanning Copyrighted Works -- For Now
> 
> On Aug 12, 2005, Lauren Weinstein <lauren@vortex.com> wrote:
> 
>> http://www.nytimes.com/aponline/technology/AP-Google-Library-
>> Copyrights.html
>> 
>> However, demonstrating that Google still doesn't really "get it," the
>> article notes that:
>> 
>>    Google wants publishers to notify the company which copyrighted
>>    books they don't want scanned, effectively requiring the industry
>>    to opt out of the program instead of opting in.  ...  ''Google's
>>    procedure shifts the responsibility for preventing infringement
>>    to the copyright owner rather than the user, turning every
>>    principle of copyright law on its ear.'' ...
>> 
>> I'm all in favor of reasonable copyright laws that don't extend
>> copyrights so far into the future that important works are kept out
>> of the public domain seemingly forever, but Google's project, as
>> relates to copyrighted works, definitely has been beyond the pale.
> 
> Dave, I am on Google's publisher advisory board for Google Print, and
> while the conversations in the room at the last advisory board meeting,
> where these changes were discussed, were confidential, I think it's OK to
> report my own feelings on the matter (and that I found myself quite at
> odds with most of the other publishers on this issue.)
> 
> It seems to me that Google's position, that scanning the documents in
> order to provide a service that allows potential readers to find which
> books contain the information they are seeking is indeed fair use, is a
> defensible position.  The fact that such a service has huge potential
> value to google is beside the point.  Google is creating, at considerable
> expense, a collective work that enables users to search books in new ways.
> The information they provide in the form of snippets, analogous to the
> snippets they show in search results for web pages, would certainly be
> considered fair use, if, for example, I were to create and circulate a
> reading list of my favorite books, including suggestive snippets.  The
> fact that they are creating it algorithmically and on demand doesn't
> change that dynamic, in my mind.
> 
> Nor are they obtaining the books that they scan in an unauthorized way.
> The libraries have bought and paid for those books.  They would be within
> their rights to scan the books and make an internal copy.  Google is doing
> this for them, but again, I don't see this as an unfair use.  The same
> people who think it's illegitimate would also argue that it's unfair use
> for a user to rip a copy of a CD to his or her hard disk.
> 
> Let me take this out of the realm of copyright law for a moment, and ask
> about which side in this debate is going to provide benefit to both
> authors and readers.  Is it google, or is it the publishers?
> 
> Even if I'm wrong about the legal issue (because, after all, I'm not a
> lawyer), I believe that Google (along with Amazon with their Search
> Inside, as well as more specialized services like O'Reilly's own Safari
> Books Online service (http://safari.oreilly.com)) are exploring new
> business models for publishing online.  I will lay pretty strong odds that
> those publishers who are whining now about the illegitimacy of what Google
> is doing will be desperately trying to play catch up once new models
> become established.
> 
> Publishers have been stalling for years in getting their content online.
> Now someone may have a model that will take us in new directions, and they
> want to stop it till they can figure out how they will be the ones to
> profit from it.
> 
> It's clear that we're entering a brave new world when it comes to digital
> versions of books.  But what we should have learned from the music
> industry brouhaha is that punishing the pioneers (even if, to quote
> Shakespeare, they let "the hot blood leap over the cold decree") is simply
> a recipe for delay, and typically transfers value from the first mover to
> the second (think Napster to iTunes), while the complaining, delaying
> parties are still too late to the party to profit as much as they would if
> they got on board.
> 
> I'm excited about the potential of Google Print to drive both print sales
> and pay per view access to online content.  Google is out there trying to
> build publishers a new business model.  Once the service is in place and
> fully deployed, there will be huge opportunities for publishers.
> 
> ------------------------------------------------------------------------
> 
> Tim O'Reilly @ O'Reilly Media, Inc.
> 1005 Gravenstein Highway North, Sebastopol, CA 95472
> 707-827-7000
> http://www.oreilly.com (company), http://tim.oreilly.com (personal)