Re: Google Book Search and fair use

[Adam Hodgkin <adam.hodgkin@gmail.com>]

Some portions of the Koehler article make it very clear that he is
well aware that 'snippets' are not the issue:

"Yet many of us are uncomfortable with the Google plan. It looks 
like an unfair taking of intellectual property. Google tells us 
that it will only serve up snippets. But we need to remember that 
Google is serving up snippets from the whole thing copied from 
the original. That "whole thing" may well be a copy of a work 
still in copyright." (from the penultimate section of his piece 
"I am not a lawyer")

Perhaps the most troubling aspect of the 'opt out' solution 
proposed by Google is that it has operated as though it has the 
sole right to determine the 'opt out' procedure. That cannot be a 
fair and reasonable solution; its a nightmarish prospect for 
rights owners since there could be any number of different 
methods of secondary digitisation which involve a myriad of 
different 'opt out' protocols. At least the robots.txt (which was 
designed for web sites not for printed materials)  is a 
convention which is general and accepted by the industry.

I have no doubt that there will be scores of different ways of 
digitizing texts in 20 years time and lots of digital formats. 
When digital copies are easily and trivially made from physical 
copies an 'opt in' permission has no chance of prevailing (see 
the fate of 'opt in' for recorded music in the last 30 years). In 
such circumstances an opt out procedure is going to be preferable 
for publishers and authors to an 'anything goes' principle. But 
the opt out procedure must be principled, fair and balanced.

Adam


On 8 Jul 2008, at 00:23, Sandy Thatcher wrote:

> Alas, this article perpetuates one of the myths about the
> publishers' suit against Google, that somehow it had something to
> do with those "snippets." That was never the issue. The crux of the
> matter was Google's attempt to substitute an "opt out" regime for
> the traditional "opt in" regime of copyright law.
>
> It was also not the Google Book Search program as a whole that was
> in question, but only the Library Project. Many of us publishers
> joined the Google Book Search program soon after it was first
> announced and believe that it is definitely a Good Thing, making
> the functioning of the economic "long tail" possible.
>
> The problem with the "opt out" approach, especially for smaller
> presses like ours, was that it imposed an unconscionable burden on
> us to research all of our past titles for digital rights in order
> to tell Google whether it could include those titles or not.
>
> Another issue for us was Google's donating a digital copy of each
> book to the participating library, thus displacing a possible sale
> (and thereby violating the fourth factor of fair use).
>
> Whether Google will prevail in court or not depends greatly on
> whether the Second Circuit buys its argument that the use of its
> search mechanism is "transformative" (under the first factor). The
> Ninth Circuit has bought into this new and radical notion of a
> functional type of "transformative use." The Second Circuit so far
> has not, and there is reason to believe, from recent cases, that it
> is continuing its tradition of interpreting what is
> "transformative" in a non-functional way. (This all goes back to a
> theory of fair use, now a classic in the field, that Judge Pierre
> Leval, who now serves on the Second Circuit Court of Appeals,
> published in the Harvard Law Review in 1990.)
>
> I'm betting Google will not prevail in the Second Circuit and would
> have to go all the way to the Supreme Court to stand a chance.
>
> For anyone interested in a more detailed argument along these
> lines, see my article "What Is Educational Fair Use?" in the April
> issue of Against the Grain, which I wrote as a reply to an ARL
> white paper by Jonathan Band on this subject.
>
> Sandy Thatcher
> Penn State University Press
>
>