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Talking ... Google Poised to Shake Up Copyright Law
18 April 2006 When Google Inc. went public, it shook up the way Wall Street launched IPOs. Now, the search engine company appears poised to shake up U.S. copyright law.
More than a year ago, Google launched its Print Library Project, a controversial plan to scan and index digital copies of millions of books, creating what Google describes as a vast virtual "card catalog." The online research tool would allow users to search within books for relevant information and would generate revenue for Google through advertising sales. The plan has sparked significant controversy and led to two lawsuits.
Late last year, The Author's Guild, the largest professional society of published authors in the US, and a group of five major publishers filed two separate lawsuits against Google in the US District Court for the Southern District of New York. The lawsuits claim copyright infringement and seek injunctions.
Google's application of Internet search engine techniques to one of the world's oldest technologies -- books -- is challenging companies, courts and legal professionals to redefine copyright principles.
Glenn Trost, a partner in the intellectual property litigation practice in White & Case's Los Angeles office, explains this much-publicized conflict and its broader implications.
Q: What exactly is Google proposing to do with this project?
Trost: Google's book digitization program actually contains several components. First, the New York Public Library and the libraries at Harvard University, Stanford University, the University of Michigan and Oxford University have agreed to let Google scan their collections in exchange for providing these libraries digital copies of the books in their collections. From these scans, Google will make available online the complete text of books that aren't subject to copyright protection. In the Google Print Publisher Program, publishers can sign agreements with Google. Then, online researchers will see the full page of copyrighted text containing a search term, along with several nearby pages in each book.
What Google does when a user's search returns a book that isn't in the public domain and isn't included in the Print Publisher Program is the controversial portion of its digitization program. That's the main subject of the current litigation. For these works, unless a copyright owner opts out of the Google Print Library Project altogether, the search results will display only a few sentences showing the search term in context.
Q: Why has this led to lawsuits? How does Google's project differ from other current digitization initiatives?
Trost: Several other groups have begun digitizing the written content of books. However, they're generally proceeding on an "opt-in" basis. That is, copyright holders grant permission before books are scanned and stored. For example, Amazon.com's "Search Inside the Book" feature allows users to search within books whose publishers have signed agreements with Amazon.com. The Open Content Alliance -- a collaborative effort to build a global archive of digitized text and multimedia content through contributions from Yahoo, Microsoft and others -- similarly receives permission from copyright holders.
By contrast, Google's Print Library Project is the only initiative using an "opt-out" model. This places the burden on copyright holders to contact Google if they want to remove their books from the digitized materials that are otherwise searchable. Many authors and publishers point to this feature of the Print Library Project to claim that using their works without explicit permission constitutes copyright infringement.
Q: Why has this topic generated such intense public interest?
Trost: The basic issue of ownership of printed materials concerns the publishing industry, the Internet, academia and many other groups and businesses. And the current cases will determine whether companies with significant investments in original content -- such as films, sound recordings, other entertainment media and software -- will be able to protect their copyrighted material from certain types of future high-technology uses by other parties.
If Google prevails in the pending cases, businesses in these industries will have to adapt to a new environment in which copyrighted works will be available online beyond the complete control of copyright holders.
On the other hand, if Google loses one or both of the pending cases, it could affect other companies operating in technologically-driven industries. These companies will need to know how to avoid violating US copyrights when obtaining millions of permissions to use a large volume of protected information would be difficult. So the outcome of these lawsuits is very important.
Q: What are the core legal issues involved?
Trost: Essentially, Google is asking the courts to apply the "fair use" defense to copyright infringement to resolve this conflict between intellectual property holders and intellectual property users -- a conflict arising due to cutting-edge Internet technology.
Several factors play into a fair use legal determination, including the purpose and character of the use, the nature of the copyrighted work, the size of the portion used in comparison with the copyrighted work as a whole, and the effect of use on the market for the copyrighted work.
Copyright law, as traditionally applied to the publishing industry, requires affirmative permission from copyright holders before another party can use copyrighted content -- the opt-in approach. But in the Internet world, search engines generally have an implied, non-exclusive license to copy and store web pages, unless the pages' owners choose to withhold permission. That is, these rights holders must explicitly decide to opt out. Google is relying on an "opt-out" content usage model -- the accepted standard for indexing web material. In this way, computer software advances are now testing the limits of traditional copyright law.
Q: What are the bases for the arguments on both sides?
Trost: The authors and publishers claim that scanning their books without permission and storing unauthorized copies of them on Google servers to make money through advertising sales would violate their intellectual property rights. They also argue that Google's actions deny them potential revenue they might have generated by selling their content to other index makers.
Google claims that it's complying with current relevant case law and that scanning books into a search index falls within the fair use defense to copyright infringement. Google is relying in part on a decision a few years ago by the US Court of Appeals for the Ninth Circuit [Kelly v. Arriba Soft Corp.]. In Kelly, the Ninth Circuit stated that a search engine using an opt-out model that copied images from a photographer but displayed them to users only in thumbnail form was a fair use of the copyrighted images. But just two months ago, a federal district court in Los Angeles in another matter concluded that Google's similar creation and public display of reduced-size extracts of copyrighted images in connection with its own search engine was not a fair use of copyrighted material [Perfect 10 v. Google].
Q: What value as legal precedents will the two current cases have?
Trost: Both Kelly and Perfect 10 -- the two most relevant cases so far -- were decided by the Ninth Circuit and a California federal district court within the Ninth Circuit. But the current authors' and publishers' lawsuits seeking to halt Google's Print Library Project were filed in the Southern District of New York, which isn't bound by California courts' interpretations. Any appeals in the authors' and publishers' lawsuits would go before the US Court of Appeals for the Second Circuit. If the Second Circuit views these issues differently from the Ninth Circuit, the split rulings could even make this a powerful topic for US Supreme Court review.
Q: What message should other companies take from the current lawsuits regarding copyright problems?
Trost: Copyright law exists both to promote creativity in authors and also to confer the general benefits of their work upon the public. But there's been some difficulty in balancing these competing interests in circumstances involving new technological developments. If these lawsuits teach us anything, they demonstrate that owners of traditional rights in creative works and those wishing to exploit new technologies must be sure to fully explore the complex legal ramifications of putting these works to new uses -- or even to old uses in the context of new technology.
Glenn Trost focuses on patent and other intellectual property litigation as well as complex civil litigation. A former engineer, he has represented clients embroiled in intellectual property disputes across a broad spectrum of industries for more than 20 years.
"Talking" features White & Case lawyers answering questions about emerging legal and business issues. For more information, please visit http://www.whitecase.com .
Any information contained in this interview is for educational purposes only. It should not be construed as legal advice.
Source: prnewswire
All trademarks and copyrighted information contained herein are the property of their respective owners.
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