Does Google Print violate copyright

Peter Suber has taken a detailed look at the Google Print issues and whether the company is infringing on copyright.

"First we have to get clear on two terms. "Google Publisher" is the name of the project to scan books that publishers voluntarily offer Google to scan. "Google Library" is the name of the project to scan books in certain libraries, with the consent of the libraries but not necessarily the consent of the publishers. Both are parts of the larger "Google Print" project, which is to scan full-text print materials for adding to the Google search index. For publishers, Google Publisher is opt-in, while Google Library is opt-out. Google Library covers books under copyright as well as books in the public domain. The Authors Guild lawsuit is about the copyrighted portion of Google Library...

I've seen a plausible case for copyright infringement by Google Library --which, by the way, is opposed by a plausible case against copyright infringement (more below). But I haven't yet seen a plausible case that the authors or publishers will be injured by Google Library. On the contrary, publishing groups who address this, like the ALPSP, tend to concede that the program will benefit them but insist that the rules be followed anyway. The AG press release doesn't mention harm or injury. Deep within the complaint that it filed in court, however, it alleges the members of the class-action suit have suffered "depreciation in the value and ability to license and sell their Works [and] lost profits and/or opportunities" (p. 10). The complaint seeks to collect damages for these losses.

If the AG mentions losses merely as a formality --which is how it looks-- and covertly concedes that Google Library will increase book sales, then the suit might still make sense. But instead of trying to stop a continuing injury, the AG would be trying to extract a settlement. It may want a cut of Google's ad revenue on top of increased sales. If so, then (as I said last month) we're watching a shakedown...

If the case goes to trial, some of these arguments are likely to be more central than others. If I had to boil down this summary to the most essential elements, I'd put it this way. The authors --and the publishers who share the same grievance-- are getting far too much mileage from the claim that Google's opt-out policy turns the usual copyright rule on its head. This claim has a deceptive strength. It's strong because it would be valid for most full-text copying. It's deceptive because it assumes without proof that the Google copying is not fair use. Hence it begs the question at the heart of the lawsuit. If the Google copying is fair use, then no prior permission is needed and the opt-out policy is justified. Moreover, Google has several good arguments that its copying really is fair use, most notably its argument that its indexing will enhance rather than diminish book sales and its analogy to long-accepted opt-out policies for search-engine indexing of other copyrighted content.

On the merits, it's an important question to settle. But I admit that I'm not very comfortable having any important copyright question settled in today's legal climate of piracy hysteria and maximalist protection --a new world order getting old fast."