Google has won a resounding victory in its eight-year copyright battle with the Authors Guild over the search giant’s controversial decision to scan more than 20 million library and make the available on the internet.
In a ruling (embedded below) issued Thursday morning in New York, US Circuit Judge Denny Chin said the book scanning amounted to fair use because it was “highly transformative” and because it didn’t harm the market for the original work.
“Google Books provides significant public benefits,” writes Chin, describing it as “an essential research tool” and noting that the scanning service has expanded literary access for the blind and helped preserve the text of old books from physical decay.
Too much common sense. I’m not sure I can handle this.
So why is Google doing this scanning? Are they not selling ads alongside it?
It’s clear this is great for research and humanity in general but it’s also the first time that a work of an author can be used by Google *without* any permission of the creator of the work.
A dangerous precedent me thinks.
Do you think this is about books that are still being sold?
I don’t think the article says one way or the other. But not sure how they can scan 20 million books and make them available online without violating copyright law. Of course, I haven’t been following this case very closely, so I’m pretty sure I’m missing something here. At least in the US, you can’t share copyrighted music/movies/etc online, even if you’re not profiting from it, so not sure how this is any different. But would be cool to have legal access to 20 million books for free
edit: wrong post
Edited 2013-11-14 19:03 UTC
Reread what I wrote.
1. AFAIK only books that are out of copyright or where the author can’t be found.
2. Nobody would give Google the authority of stealing copyrighted material, give it away for free and make money on the ads.
Of course 99.9 percent of the books are not read anymoreand there will also be a percentage out of copyright. But if you allow someone to use your work without permission, I think we are on slippery slope.
How would you feel if you create something and other people ran away with, citing “It’s so useful, you can’t keep this to yourself…”.
What I can’t find from the article is if Google is making money out of the service. To me that makes a big difference.
The whole idea behind copyright and patents is exactly this. If you have something useful and you want to make money off of it, you can only keep it to yourself under certain conditions. We stand the risk as a society of losing a great deal of the literary works that we have created over the past 100 years, due to books going out of print and lack of interest in reprints. I do suspect that Google will eventually make money off of this effort, and I think that’s okay. I’m totally fine with them making money by saving part of our culture. Just as I would also be fine with a private company making money off of not destroying the public rain forest ( maybe by hiring locals to pick berries or nuts or something).
Wondercool,
That’s a good point, I think the ruling makes sense under the justification that it maximizes the public benefit of works which are no longer being produced by their respective publishers. However some of the assertions seem a tad naive, such as “[Google] does not engage in the direct commercialization of copyrighted works.” (my emphasis). It seems very likely google will seek to monetize these non-public domain works in some form or other (be it from advertisers or advertising related purchases from google, or even behavioral tracking used to push ads elsewhere). Here are the questions I have (bear in mind that I didn’t read all 30 pages):
1. Does this right to scan & distribute copyrighted material with unreachable publishers extend to anyone else beyond google?
2. Since google doesn’t hold a copyright, then are others allowed to copy and redistribute the books from google?
3. If the original authors come out to claim the work, will they be entitled to share google’s profits for their work?
I recognize there is a public interest in allowing these copyrighted works to be publicized again. However in my mind this is an implicit acknowledgement that copyright law is overreaching and fails to line up with public interests. IMHO alot of this would be solved by going back to the original copyright system and take away the absurd extensions that disney & friends lobbyed for.
This is an eye opener:
http://en.wikipedia.org/wiki/File:Copyright_term.svg
Edited 2013-11-14 18:43 UTC
#2 – Holding copyright and having a license are two different things. Google most definitely does not hold copyright to any of the books in question. Because holding copyright would immediately dismiss the lawsuit, because the copyright holder has no limitations to what that entity can do with the object of copyright.
#3 I might be wrong, but I believe Google is already paying publishers for that privilege. So if an author comes out to claim his work, we would probably be treated as any other publisher/copyright holder.
It is deficient. It fails to cover a lot of aspects that have come about with the explosion of intellectual works, like archiving and performing media shift.
Not a dangerous precedent, but fair use. Google isn’t sharing the entire text of copyrighted work (without permission) but merely a snippit. This is really the same as a brick and mortar store allowing you to browse a book before buying.
Edited 2013-11-14 18:52 UTC
bentoo,
It sure does seem like there is a lot of new precedent:
Previously anyone making full unauthorized copies of copyrighted works (without owning the original, as in google’s case) would have been a no-no, regardless of intent.
Now that google seems to have a public interest waiver, can I go do the exact same thing? Can I borrow books and music from friends, make full copies without authorization, and then keep full copies of them on my servers so long as I only redistribute fair use snippets myself?
Edited 2013-11-14 19:36 UTC
Probably. As long as your use satisfies the four fair use factors (as the judge ruled Google’s use did in this case).
bentoo,
“Probably. As long as your use satisfies the four fair use factors (as the judge ruled Google’s use did in this case).”
Well, I’m looking forward to reading about those who have the courage to try it! I would not have the resources to put up a defense. I’d worry an expensive corporate copyright lawyer would find a way to win against small guys trying to apply this ruling as case law. The slightest slip up and then suddenly the small guy becomes liable as a mass-infringer.
Edited 2013-11-14 23:53 UTC
The small guy always looses in the US, that doesn’t mean that if the players are equal that the copyright owner would still win.
In copyright law making quotes is allowed, so if they really only share/distribute snippets. That would be fine.
But, they didn’t pay to buy the books. They borrowed the book from the library and kept a private copy.
That is not something that is normally allowed, I would think.
As you and other pro-BSD leeches who would try to resell these books as shareware or other sorts of garbage like it should be.
Thats not exactly true. A teacher, for example, can make photocopies of a book to use a teaching materials (even one they do not own) and that at least can be acceptable fair use under the right circumstances.
Why are you making the copies? If you are doing it just to read them, then it isn’t fair use. In fact, regardless of why you do it, if you take advantage of the fact that you are doing it and read them it isn’t fair use.
Here’s a link to a documentary I watched this year about this topic: http://techcrunch.com/2013/05/08/google-book-search-and-the-world-b… .
I think we should start to move into an era of copyright law where “guilds” have to prove this kind of action damages book sales.
In the eight years that have passed since the beginning of this legal action, has there been a collapse of the book industry?
kwan_e,
“I think we should start to move into an era of copyright law where ‘guilds’ have to prove this kind of action damages book sales.”
Why? Would it make any difference at all? Traditionally it would have been the author’s right to not have commercial entities making full text copies without their permission. Now authors have lost this right, which they are understandably upset over. Maybe they should have never had the right to begin with…? Never the less, this case law coming from the bench is far less ideal than having an official policy spelt out by congress.
Because that’s the main argument they put up, and that’s the main way the act. This is simply holding them to their word.
Like the music industry protects artists with their creative accounting?
Artists and authors, the actual creators of the creative works, already hand over most of their rights to the publishers. Even this supposed “Authors” Guild is not really about the authors but the publishers.
kwan_e,
“Because that’s the main argument they put up, and that’s the main way the act. This is simply holding them to their word.”
Who exactly are you holding to what words? A direct citation would be useful.
“Like the music industry protects artists with their creative accounting?”
You compare this to the record industry, however frankly the book industry aren’t nearly the same scum as the RIAA are. Also, the David vs Goliath dynamic is reversed.
“Artists and authors, the actual creators of the creative works, already hand over most of their rights to the publishers. Even this supposed ‘Authors’ Guild is not really about the authors but the publishers.”
It’s both of course, however that doesn’t really change the point: It’s understandable that they’re upset over google keeping full digital copies without consent. Their position to retain rights over digital copies at google is not an inherently bad one.
Edited 2013-11-15 05:51 UTC
I mentioned them already, and they are mentioned in the article itself.
Again, the article provides a relevant quote:
“Chin also rejected the theory that Google was depriving authors of income, noting that the company does not sell the scans or make whole copies of books available. He concluded, instead, that Google Books served to help readers discover new books and amounted to “new income from authors.—
Why would Judge Chin need to reject the theory that Google was depriving authors of income, if such an argument was not put forth by the aforementioned party?
Except it’s not. While they may not be as scummy, the fact is the royalties for authors is not more than 50%. Unless publishers of any sort of creative works give royalties over 50%, then it’s always going to be David Authoer vs Goliath Publisher.
It is relevant because we all know that the “protect the creators” line is always bullshit.
The article also notes that librarians and scholars are behind the digitization of texts, and libraries ALSO keep full copies of works for unpaid loans without consent of the author. Should we get rid of libraries?
I think what should actually happen is that Google should be forced to give up control of the digitized works so that all parties, commercial and non-commercial (eg archival, research), can use the books as argued.
kwan_e,
“Chin also rejected the theory that Google was depriving authors of income, noting that the company does not sell the scans or make whole copies of books available. He concluded, instead, that Google Books served to help readers discover new books and amounted to ‘new income from authors.'”
I completely agree that the excerpts are fair use and don’t deprive authors of income. However this really isn’t in the words of the authors and probably does not represent their view. If having a complete digital copy were of no value to google, then why doesn’t it just store some fair use excerpts and be done with this whole shenanigan? It is inherently true that google wants more than fair use excerpts because having full digital works DOES have additional value for them, the only question is how much value? *This* is the potential amount that copyright holders are loosing out on.
Many here are clearly cheering google’s right to digitize books without permission, and that’s fine, perhaps google’s win against content holders is best for the public too. However it would be disingenuous to deny that there was potentially tons money at stake for the copyright holders.
“Unless publishers of any sort of creative works give royalties over 50%, then it’s always going to be David Authoer vs Goliath Publisher.”
“It is relevant because we all know that the ‘protect the creators’ line is always bullshit.”
As much as you may vehemently disagree, we have more in common than you think. I also strongly detest the asymmetries that have developed in our “free markets”, I just think your anger may be misdirected.
Edited 2013-11-15 07:25 UTC
No, but it is the view of the Authors Guild, who are the ones driving this legal action. Whether they really represent the actual authors is up for debate, and you know my thoughts are that they don’t really represent all authors, but nevertheless they are the ones who are vocal on the matter.
Because how can Google know which excerpts of a book a scholar wants to quote?
Recall in the past when certain organizations wanted to make Google pay for indexing their sites contents. I’m sure Google would be more than happy to oblige for any authors or their representatives requests to have their works completely unsearchable.
As I’ve said before, I don’t think we’ve reached the end of this. I think the best scenario is if the digitization collection was taken out of Google’s control. Maybe given to the Library of Congress or something like that on a more international level where we can limit access to fair use proportions. Then, not only does Google benefit from the full digitization, other companies and even the publishers themselves can benefit from it.
I think where we’re not really meeting each other is you’re viewing this as Google vs Authors, whereas I’m viewing this as AnyOrganization vs Guild.
ie, if this went the other way, not only would it limit Google’s activities, it would limit any activity that aims to be the same, which includes public libraries. Public libraries would also be prohibited from doing their public service because what are they doing but making full copies available for free and supposedly “stealing” a sale (that never would have eventuated were it not for the free sampling).
Which is why I said right at the very beginning that claims like this need evidence. This legal action has been going on for 8 years. Public libraries have been around for hundreds of years. The book industry has never collapsed since being invented.
The hidden message really is that there are a few people who want to make a lot of money and they aren’t happy unless it’s at the expense of others and society in general. Some authors don’t like the fact other authors can be successful without going through the hoops they had to, and also not being vetted by the literary establishment as being worth reading. Some publishers don’t like the fact that they won’t be able to bully new authors if they have another avenue to get compensated.
kwan_e,
If the scholar has a copy of the book, he can quote whatever he wants.
I think that would be a good outcome too, now google on the other hand probably would not. They could have saved themselves a lot of legal trouble if they didn’t want to keep possession of the digital copies for themselves.
Libraries are specifically codified into copyright law to permit them to exist and loan out legitimate copies of books, but they don’t really have more rights with respect to copying. I’m not sure if this is different in other countries, but in the US we are not automatically entitled to copy full works at the library. Both the library and the patron can be liable for copyright infringement. Unless there are outstanding factors having to do with lack of availability from the publisher, only typical fair use copies are permitted.
http://copyright.lib.utexas.edu/l-fu.html
Well, the logic was inherently true, if keeping full text copies had no value for google, then google would not have a reason to fight for keeping full text copies, ergo it has value to them. The price of which could have been determined on the free market before this ruling set it’s value at 0.
It depends on exactly what you mean, the physical book industry is in very real danger. I only know of one remaining local bookstore selling used books, the rest have vanished. Obviously some of that is offset by gains in digital media. Maybe we the public are better off now, I donno I’m tired
http://www.economist.com/blogs/prospero/2011/03/american_bookshops_…
http://www.arbitragemagazine.com/general/the-decline-of-the-booksto…
Edited 2013-11-15 10:11 UTC
And most scholars don’t have the money to own all the books they need. Nor can they afford to fly to other countries for the books they need. Nor can scholars do a textual search of books in a short amount of time.
And neither is Google letting people copy the full work. They have the full copy of the work, just like a library does, and then people use those full copies of the work in a fair use way, just like they do with the full copies at the library.
No one said there was no value to Google. The argument is that it decreases the value to others, which you haven’t proven, and evidence suggesting it is bunk. As far as I can tell, your argument here is a strawman, since no one is saying this has no value to anyone, but I’m open to being corrected.
And exactly what I mean is “book industry”. The form doesn’t matter. The horse and buggy carriage industry collapsed after the invention of buses, but the transportation industry has not.
At no point is society obligated to keep all historical forms of technology alive just because some people can’t adapt. Only just what was possible before is possible now.
The fact that Kindles and ebooks sell really well these days means the book industry is thriving.
kwan_e,
“And most scholars don’t have the money to own all the books they need. Nor can they afford to fly to other countries for the books they need. Nor can scholars do a textual search of books in a short amount of time.”
What’s wrong with getting a legal copy from the library? Nowadays they have many ebooks on loan as well.
“And neither is Google letting people copy the full work. They have the full copy of the work, just like a library does, and then people use those full copies of the work in a fair use way, just like they do with the full copies at the library.”
Google is making copies for free and without permission whereas the libraries have to pay for their copies. They’ll even buy several copies as needed (this restriction is also enforced with e-books) and all this is paid for by community taxpayers. There are 120k libraries in the US, assuming a book’s price is $10, that’s $1M+ not even counting the multiple copies some libraries have. Assuming 10% royalties (which we can agree is abysmal, but that’s a different problem), that’s still ~$100K for the author JUST from library royalties. Less popular authors will get less, more popular ones will get more, but if you are going to liken google to a library, then in principal google should be paying royalties too.
http://www.ala.org/tools/libfactsheets/alalibraryfactsheet01
“No one said there was no value to Google. The argument is that it decreases the value to others, which you haven’t proven, and evidence suggesting it is bunk.”
Like it or not, that’s how a free market works. The price isn’t determined by either the seller or the buyer but by supply and demand. We don’t have to prove that X has value, the free market determines that. For better or worse, the government has stepped in and dictated the price to google shall be zero, so naturally copyright holders won’t be getting monetary compensation from google, however let’s stop the pretense that there would not have been a market value otherwise.
“At no point is society obligated to keep all historical forms of technology alive just because some people can’t adapt. Only just what was possible before is possible now.”
It goes both ways, and Google could be held to the same standard. If they refuse to adapt their business model by paying market value for permission to use digital works, then arguably they should fall to the wayside in favor of those who are better suited to survive in a world where digital content is not free(*).
* And herein lies the source of friction between content holders and google/end users. We’re in the “information wants to be free” generation. We are all smart enough to know the marginal costs of production on digital content is zero (or could be made zero if copyright holders got with the program), so many of us feel entitled to get those marginal copies for free. No one really answers the question of who pays for the first copy, the tech sector for it’s part doesn’t want to share any of it’s profits with content producers. Those who cannot adapt: tough break for them, clear the way for what’s ahead!
Whether this is actually best for public interests is uncertain. Often times people forget that when it comes to survival of the fittest, it’s often the smallest players who loose regardless of how much they were contributing to society.
I feel we’ve done a pretty good job outlining all sides of the argument, no? Things are changing, and for some people it will be better, and for others it will be worse. All sides have merit, it’s just different points of view. I don’t have any more energy to expend on the topic, so I’ll give you the last word, just please be respectful
Yes, but this isn’t comparable since it is fair use to create copies for research and analysis (like statistical analysis), so if you create indexes based on the words in a book, you should be ok. It is a reasonable activity and making copies for that purpose is fair use (and should be).
The real issue is the publishing of excerpts/images etc… In most cases a single sentence is not protected by copyright, and the four lines from a novel might not be either. Not sure. A copyrightable work has to be substantial. However, a poem of 3 lines is a complete work and is substantial, so that you would have to judge on a case by case basis. The real question is if Google does that and seeks permission in cases where the “artistic density” is high. Maybe they do, maybe they don’t.
Either way, Google wins. If copyright becomes undermined in society they will get more business, because that will direct businesses towards becoming service providers rather than content-manufacturers, and Google provides some of the best technology solutions for big service providers…
Google doesn’t care about copyright… they care about service-creating opportunities and aggregating information. That’s their business model and their own critical copyrightable IP is walled into their own data centers and never released so they don’t really need copyright to protect their own business. Which is why they can keep challenging copyrights within the edges of US copyright law using small-scale fair use precedent (search), web-hosting laws (youtube), and scaling it up using lawyers to bring their strategy to the edges of prior rulings in the US and then deploy it to the entire world through the Internet (violating copyright laws of other countries).
Libraries aren’t magical places with every book anyone could ever want.
They have fully digitized copy of the books! People can make unauthorized copies of the entire work! Oh no!
Like it or not, there’s no such thing as a free market.
Let me repeat again. NO ONE is arguing that there is no value to Google. The argument is that it doesn’t DECREASE the value to others. You’re STILL arguing that I’m arguing there is no value to Google.
Again, this isn’t just about Google. Right now it’s Google under fire, but it applies to any future attempts to digitize works for preservation.
Furthermore, the world IS moving to digital content which is free. It is the popularity of free news and free blogs and free movies/entertainment that is killing off some physical media outlets.
Nothing about entitlement. The evidence shows that the digitization effort does not decrease sales and ruin the book industry. People are obviously getting paid for their work. What’s happening now is that different people are getting paid for their work, and the old guard doesn’t like the fact that many people are just happy to get paid for their small segment of readers and not have to become bestsellers to gain leverage over the publishers.
Except in this new digitized world, we’re seeing small players who never had a chance before get a chance. This digitization effort exposes people to a large number of works that they could not have done without shelling out for an actual copy of the book that they could not sample before.
We hear it time and time again that people often buy things once they sample it for free.
Like I said, we need evidence. I’m in favour for revisiting and reviewing the law/ruling in a few years to see if the negative effects should be enough for a rollback of the law/ruling. However, if there is still a healthy book industry, then none of your fears is real, no matter how much what-if scenarios you invent.
See my other response to you. This is immaterial.
The difference is Google doesn’t distribute complete copies of the works, copies that would obviously compete with and destroy the market value of the originals… In fact the court basically sees no economic harm at all in their service.
If libraries didn’t have to pay for the books they loan and could simply make unlimited copies and loan them out with no restraint, they would completely destroy the book market. That is the difference. Its like the goose and the golden eggs – the courts established the fair use rules around how libraries work (and there are rules they have to follow) in an effort to give the public access to the golden eggs in a way that doesn’t destroy the goose… Libraries have to buy the books because if they didn’t it would destroy the incentive to make the books in the first place.
Google is doing something different than Libraries, because they go to great effort not to distribute copies of protected works that would compete with the copyright holder. The courts think that they have done it well enough to constitute fair use, so they get to keep doing it.
There is market value in Google Books, but its value is not dictated by the content – it is the service that has value. The service they offer is not distributing books – it is indexing them, making them easier for people to find them, easier for researchers to get quotes/excerpts, etc. – things the court determined do not negatively affect the rights holder ability to monetize their work. It is a transformative use – that literally means it has value outside the the content itself, i.e. a value the copyright holder does not have a right to, because it’s value is not dictated by the content – and it may not be feasible to offer such a service otherwise (it would simply cost so much as to make it impossible for anyone to offer it to the public).
I say this because the minute Google tries to monetize this service in any way beyond what they do now they are treading on thin ice. This decision in no way gives them the right to start plastering ads on Google Books – part of the reason they won this case is because the court sees the limited amount of indirect revenue they receive currently as fair compensation for the service they offer… It doesn’t given them license to start plastering ads all over it – the amount of revenue this service generates is very material to whether it is protected by fair use.
If they deviate much from their current practices (which is to not show any advertisement on Google Books itself unless permission is given by the copyright holder), they will likely end up right back in court – and they would wind up having to pay for it…
Also, I would point out something no one seems to mention… Google will take any book off of Google Books at the request of the copyright holder.
https://books.google.com/partner/exclusion-signup
Granted it is opt-out (and I hate opt-out systems), but they do bow to the copyright holder’s will when asked.
Edited 2013-11-16 04:08 UTC
And most scholars don’t have the money to own all the books they need. Nor can they afford to fly to other countries for the books they need. Nor can scholars do a textual search of books in a short amount of time.
And neither is Google letting people copy the full work. They have the full copy of the work, just like a library does, and then people use those full copies of the work in a fair use way, just like they do with the full copies at the library.
No one said there was no value to Google. The argument is that it decreases the value to others, which you haven’t proven, and evidence suggesting it is bunk. As far as I can tell, your argument here is a strawman, since no one is saying this has no value to anyone, but I’m open to being corrected.
And exactly what I mean is “book industry”. The form doesn’t matter. The horse and buggy carriage industry collapsed after the invention of buses, but the transportation industry has not.
At no point is society obligated to keep all historical forms of technology alive just because some people can’t adapt. Only just what was possible before is possible now.
The fact that Kindles and ebooks sell really well these days means the book industry is thriving. [/q]
No,it means that people are basically stupid. 5-10 years from now, you won’t be able to read or view any of the “content” you bought for that Kindle,Ipad or pretty much any other ebook reader, due to the fact you won’t be able to find a replacement battery for the unit, the hardware died, and there’s nothing around that’s compatible with the formats it used and so forth and so on.
Not to speak for kwan_e, but I think he might be alluding to the fact that the 4th factor of determining fair use, the affect of the use on the market or value of the copyrighted work, is often considered the most critical – and it is ultimately the copyright holders burden to show how the use affects them negatively.
It would make things a lot more streamlined if the fair use law were restructured so that the copyright holder, as part of the process of bringing suit, had to present their evidence of real or potential harm for the court to review before hearing a case with a fair use defense. Without establishing that why even bother? There logically has to be some kind of harm, if there isn’t any what is the point of the courts going though all the trouble.
This case was a huge waste of all parties time and money, the AG, Google, and the US court system would have been much better off had this got nixed 8 years ago.
A copyright holder has a right to controlling monetizing their work, but they do not have a right to controlling monetizing fair use of their work. They have to show loss of market or market potential by the transformative use – they can’t just whine because they are not getting a piece of a pie they never thought of or planned to offer in the first place.
If the AG had evidence of plans to offer this same service than I suspect this lawsuit would have gone differently, but without that there is literally no harm to be seen by Google’s use – in fact it probably has a positive impact on the book market. The AG never really had a chance in this one as things panned out.
I really don’t think that is true. Fair use cases don’t establish precedent the way it works in other areas of law – every case is heard on its individual merits and minor details can and will effect the outcome. Change one seemingly tiny detail somewhere and this case could have easily gone the other way.
galvanash,
I agree with all your points. Easy right?
A big caveat is that google’s own complete digital copies themselves are not “fair use”. If google only kept fair use excerpts, nobody would care about that. It would be easy for google to convert all the works they’re storing against the right holder’s will into fair use excerpts. However it’s quite obvious the value to google is in having the complete digital work.
I haven’t formed my opinion on the subject yet, but I’m playing devils advocate because everyone seems to be so polarized in one direction.
Yeah, but how can you say that when the judge just ruled that it is fair use? Your working off the assumption that to be fair use the copy cannot be complete. Limiting yourself to partial excepts is certainly a good practice to cover yourself legally for fair use, but there is no requirement to do so and never has been.
Google does it (makes complete copies) for technical reasons, and the court’s opinion is that their reasons and their methods are sound enough that the AG’s concerns are without merit in this case.
So it is fair use, because the court just said it is
I guess the question is could Google do what they are doing without archiving complete copies? I only saw the ruling, but my assumption is they must have argued successfully that keeping the copies is a requirement for their usage scenerio – either that or since the AG could not produce any compelling evidence of harm it didn’t matter.
galvanash,
“So it is fair use, because the court just said it is”
Well yes that’s true, even if a bit circular. It’s probably fair to say that granting fair use rights to users of unauthorized copies is not what was intended by congress… Who knows where that could go? It’s likely to extend to all domains under copyright, like software and movies. I just can’t help but feel that google are going to be held to a different standard now with respect to fair use than regular Joes like us.
A serious question: If someone got caught with a boatload of unauthorized copies of copyrighted works plus fair use excerpts, does that become allowed? We won’t really know until more unpredictable judges establish even more case law. Litigants will almost certainly go “judge shopping” to establish new favorable case law. None of this should really be happening, it really should be left to congress.
I don’t mean to be pendantic, but that is exactly what was intended by congress. Fair use only applies to unauthorized copies, if they were authorized then there would be nothing to argue about… Again, the completeness of the copy, while certainly relevant, is not in and of itself a deciding factor.
I don’t think that is true at all… I stress again the point that Google has not been given any kind of special dispensation here – they have simply put their arguments in front of the court and the court has determined that they are covered by the fair use in this case. This is certainly not the first time a commercial company has enjoyed such protection – see Sony v Universal (BetaMax case). That involved complete copies of copyrighted work too, and although it was contributory infringement in that case – the court saw it in much the same way. If the public good of the infringement is high enough, and if the harm to the copyright holder is low enough, and the use is transformative enough, etc. etc. – that is what matters in the end.
I think you are missing the point though… It’s not a matter of having copies of things – it is a matter of why you have the copies and how you are using them. Google runs Google Books – which the court views a benefit to the public and for that and others reasons has determined it is covered under fair use. Some random guy? He has to come up with his own fair use defense…
In the view of the law, in both cases it is copyright infringement. Fair use is always copyright infringement, its just copyright infringement that is protected by law.
It goes both ways you know… There have been cases where the infringer only used a very small excerpt of a work and lost a fair use case.
Btw, this is an excellent summary of fair use cases over the years that gives a great amount of insight into how the law works. No legalese or anything, just straight forward examples and brief explanations of the court’s rationale:
http://fairuse.stanford.edu/overview/fair-use/cases/
Here is an analogy for you:
1. A critic reviewing a book buys a copy of a book, reads it, and prints a review. In the review he quotes a few lines from the book.
2. A critic reviewing a book borrows a copy of the book, reads it, and prints a review. In the review he quotes a few lines from the book.
Is there any difference in these two scenarios legally?
The answer is no. In both cases the reviewer is committing copyright infringement. The fact that in one case he bought the book does not give him permission to distribute copies of the work, and even a small excerpt is a copy. It is the fact that he published a copy that is a violation of the copyright holders rights, not the fact that he didn’t pay for the book in the first place – that is in fact completely immaterial to the infringement, because purchasing the book does not give you license to distribute copies of it.
Your reservations around the Google case seem to be centered on the fact that Google did not buy the books they scan. The fact is, under fair use, it doesn’t matter. Even if they did buy the books they still would not have the right to publish copies, even partial copies. The copies, whether complete or excerpts, are still copies and are infringing on the copyright holder – fair use laws just give Google legal cover to do it anyway (just as it gives a critic legal cover to print quotes).
So why doesn’t it matter? Because if it did, and a book author didn’t want a critic to write a review because they feared it would be negative they could simply refuse to sell them a copy… Granted, that is an over-simplification, but non-the-less pretty accurate. If you had to buy the works you exercised fair use on, there would be no point because the copyright holder could simply refuse to sell them to you… The court is saying, in effect, that you usage is more important than the copyright holders rights – including the right to deny you the ability to do it (whatever “it” is).
Edited 2013-11-15 23:08 UTC
galvanash,
First of all, there seems to be an extremely unusual use of terminology here. Since the 1976 copyright act includes fair use, most people would just say “excerpts do NOT infringe copyrights BECAUSE of fair use” rather than say “excerpts DO infringe copyrights” (and in the next paragraph) “…but that doesn’t matter because we have fair use rights”.
As to your main point, I agree the reviewer can take excerpts from either a borrowed book or a bought book, it makes no difference.
This seems to conflate two things in order to shift the activity that fair use applies to. I cannot tell if this was done intentionally or without realizing it, so maybe it’s good to enumerate all the activities specifically:
1. Google borrowing books, creating whole text copies, returning the original, generating partial text excerpts, keeping the copies for themselves.
2. A reviewer borrowing books, creating partial text excerpts, returning the original.
Note that google’s activities are a super-set of the reviewer’s. The reviewer is able to apply fair use for the activity of ‘creating partial text excerpts’. And by all means google should have the same fair use rights for the same activities. What’s truly different here are google’s two extra activities. The reviewer would be violating (traditional) copyrights if he made & kept full copies of the books without permission as google is now doing.
I hope it’s clear now why buying versus borrowing was not the premise of the argument.
If you want to defend google’s actions (ie for the better public good), you’ll get no argument from me. However it’s misleading to equate google’s actions to those of “normal” fair use activities. This is absolutely an extension of fair use, and for better or worse copyright holders have lost certain rights to control their works that would have traditionally been granted to them before this became case law.
To be honest, it doesn’t much matter to me which side people want to back on this one. I’ve been trying to point out that both sides have merit, but this has been very hard to get through since everyone else falls on one side and I’m the only one left arguing the other. I am tired of holding down this position all by myself
It’s just that *lots* of posts contain weak arguments that misrepresent the opposing view. I’d be exceedingly happy if someone could end this with a strong argument!
I’d like to give you the last word like I did for kwan_e so that I may take a vacation from thinking. You are more than welcome to join me
Edited 2013-11-16 08:50 UTC
I find it helpful to look at it this way… Fair use is an exception to infringement, so it makes sense to look at it form the point of view that it only applies when infringement exists. So without infringement, there would be no fair use.
Lets try it this way…
Do you have a DVR? Lots of people do, and they make complete copies of protected works all the time with them. Many of the works that are copied are not paid for and are not owned by the viewer. It’s perfectly legal because of fair use, as long as they do not distribute the copies.
Yes, because they recieved it (through broadcast or cable or whatever) the right to view it was granted to the viewer, but NOT the right to make a copy for their personal use – that right is granted through fair use and is absolutely copyright infringement otherwise.
How is this different? How does this ruling “expand” anything?
Been in that situation myself quite a few times… No worries, I certainly don’t want you to think I mean any offense or take any from this discussion.
Edited 2013-11-16 10:45 UTC
Not true. Fair use has not been extended in any way.
A great example are parodies. In fact it’s the best example that oversteps Google’s by far.
A lot of the parodies transform a work in a certain way, yet they reproduce a verbatim copy in one aspect or another. And yet, fair use applies to them.
The issue here is that you have to broaden your understanding to what fair use applies, because it’s not narrow by any means.
You think that fair use is something else, but the fact of the matter is that fair use is the doctrine that makes unauthorized copies legal.
That depends on the use and intentions. Hence the word “use” in fair use.
The only reasonable argument against it I have seen is the slippery slope argument. And I think there should be clear logical rules that are so easy to use that you don’t even need courts.
So I understand completely why everyone is polarized in one direction.
Lots of incorrect information in the comments in this thread.
As per the NY TIMES —
1– Google is scanning currently copyrighted works by living authors who own those copyrights
2– Those books are searchable but only part of the entire text is available to read online
3– Google gives complete digital copies of many copyrighted books to libraries and publishers (trying to buy them off as opposition, leaving individual authors without corporate allies in their opposition)
4– Google is doing this to make money , which they make from ads and other tie-ins to this huge body of work which they now control and use in spite of pre-existing copyrights
Read full details here —
http://www.nytimes.com/2013/11/15/business/media/judge-sides-with-g…
Just as in the case of their Youtube subsidiary, Google is profiting off the intellectual property (IP) of others (authors, singers, bands, songwriters). IMHO this is a clear violation of copyright.
If a high school kid steals a song, the RCAA goes after him. If Google steals songs and posts them on Youtube to the world, the courts take their side.
IP theft is wrong — whether done by an individual or a large corporation.
LOL. Google steals songs and posts them on Youtube?
No, they do exactly the same thing that Pirate Bay does, but they make sure to stay just below the legal radar and pretend that this is not part of their business model.
Of course it is…
Edited 2013-11-15 19:00 UTC
When did Pirate Bay start responding to takedown requests from copyright holders? When did Pirate Bay start offering to pay the copyright holder a percentage of ad revenue on videos (that someone else made) that infringe on their content? I guess the big one when it comes to music, when did Pirate Bay take down ALL of the FLAC and high-bitrate AAC/MP3 audio files and replace them with awful, stupid, badly made videos with the music embedded in them that generally sounds like it is playing through a tin cup?
Yep, Youtube is exactly like Pirate Bay…
You do realize, btw, that the reason there are so many copyrighted music uploads on Youtube nowadays is that many of the studios (Universal is a big one) no longer want to take down the videos – they just accept the monetization deal for most of them.
Your whining about something most of the studios stopped caring about long ago. Sure, they would love to nail Google to the wall in court to get a big payday or sweeten the pot if they could, but the reality on the ground is that they are fine with the current status quo and have been for a while… Their actions tell a different story than their lawyers.
Pirate Bay did not host anything so there is nothing to take down, and they are political. The only practical difference is that Youtube is balancing the legal borderline and pretending not to benefit from plagiarism, but they still make money from advertising on videos that violate copyrights.
I am not whining at all. I am simply pointing out that the main principal difference between youtube and Pirate Bay is that the former is commercial and apolitical legal-tip-toing and the latter is a political statement. The effect on copyright for authors on moral grounds is basically the same. Legal does not mean good ethics. Actually, since Pirate Bay is political I’d say their ethics are better (even though I disagree with them).
What big studios do is irrelevant.
So I guess my question is how would you propose someone run a website hosting user created videos? Or is your argument that the benefits of such a site are outweighed by its potential to harm copyright holders?
Seriously, in my view Google bends over backwards to try and compensate for the harm done to copyright holders by their service. But in practical terms if what they currently do is not good enough in your opinion, then what is the alternative? Who does it “ethically”? Or is it your contention that such a service cannot be done ethically and therefore should not exist?
Youtube compensate authors for copyright violations? You mean they actually pay copyright holders for the advertising they have done on their content in the case of infringement and in addition pay the standard rate for displaying the content? The standard for infringing here is that you pay twice the normal licensing-rate (like if you by mistake use a photo or forget to give credit even with a license). I do not think Youtube does this?
You can create an ethical hosting service if you a) make it easy to remove obviously infringing content b) require uploaders to provide verified identity information that is public. Youtube made the takedown process slow in it’s formative years, I find it hard to believe that this wasn’t on purpose. Youtube would never have gained traction had it not been for the massive plagiarism that took place there in the formative years. Then they can act a bit nicer once they gain critical mass, otherwise the lobbyists will press for regulation. It’s a game.
Just about everything Google does is based on making money off other people’s IP. Their key business model is:
1. Advertising on the aggregate of other people’s IP.
2. Keeping the competition at bay by critical-mass strategies.
Youtube and Google Books is about staying current even when other web search engines reach parity by being broader than other services. Android and Chromebook is about undermining the critical mass bias of competing services (Microsoft/Bing etc).
Like any other big business all ethics go out the window if their actions provides a long-term strengthening/protection of their core business. Then they spin to make it look good in the public’s eye.
I don’t dislike Google. Their cloud solution is great. Dart is great. Chrome is good. But their ethics in business-critical areas is no better than IBM/Apple/Microsoft/Intel etc. It is a corporation. With corporate strategies.
No, they offer to pay them a percentage of advertising revenue on the video as an alternative to taking the video down. It is up the the copyright holder to decide which they would prefer to do.
Of course they don’t – they don’t directly infringe. If the copyright holder wants their due they can go after the infringer (the person who made the video)… I am not familiar with the standard you are referencing here, but in my opinion, if the issue is ethics, than it isn’t ethical to go after Google for compensation when the actual infringer is another party – Google just hosts content, they do not create it.
Youtube does this.
Like authors are not allowed to publish under pseudonyms… You expect to deny the right to anonymity to others when it is routinely exercised by the party you are defending? Seriously? Yeah, that sounds real ethical…
Never said otherwise. But people like Youtube. People like Google Books. People like gmail. Google figured out a way to make those things available to the public without having to directly charge them for it – they fund it through advertising. And who pays for advertising? In no small part it is people selling things, much of it the same IP you are talking about (movies, books, music, etc.) Is it so bad, ethically, to create a business model where those that sell things pay to allow services to those that buy those things?
I’m not saying it is all roses, but it has it upsides too – the copyright holders never seem to want to acknowledge that Google is one of their best means to get eyes on their products. They pay for it after all, it can’t be all bad.
If they stopped paying for it, it would no longer exist…
So, they get to keep something they had no (moral) right to in the first place, because the legally can get away with it in a particular jurisdiction.
Which is due to the particulars of U.S. hosting laws. In some other countries Youtube would not have been able to exist, since they would have been give editorial responsibility.
Which is really an “artifact” of the particular U.S. laws which Youtube were using/abusing. Google can do this because their most likely long term motive is to see copyright weakend, they benefit from this. A corporation like Sony who rely on copyright and want to see it strengthend would not have created such a service.
Actually they required you to send a signed take-down request on paper AFAIK. That could easily take a week from Europe. And when it was removed someone else would upload it the next day… Only after they gained critical mass did they “change”. AFAIK.
In other countries you get editorial responsibility and you have to make an effort to gain the real identity of users that publish material on your site. Again, the idea that you should both allow anonymous upload and claim no responsibility is a US phenomenon.
Which party am I defending? I am defending noone, I just claim that Google is doing legal tip-toeing and bending the “edges” of opportunities in US copyright law, because it is in their long term interest to see a weakening of copyrights.
Yes, I like and use those too. Although the advertising on youtube is now getting very annoying. There was very little advertising in the beginning. The strategy is to gain traction/critical mass, then increase advertising pressure until you reach the pain-threshold. Now there is a lot of advertising on youtybe. For me, as a european, the amount of advertising on youtube has become very close to unbearable, but by US standards it is probably no worse than TV. (The advertising pressure is generally higher in the US).
Well, my point is that Google aren’t either ethical/unethical, but amoral when it comes to key business areas (although they are nice in the non-key areas such as providing programming tools, which I use and love almost every day). They strengthen their core business, use the legal opportunities that US law currently permit, and try to stay “bearable” in the public eye. Of course, in global markets that is kind of difficult over time since the “pain thresholds”/”expectations” differs from country to country.
People pay for a lot of shit… ;^)
That is the irony of this whole argument. Fair use law in the US is one area of law where morality (in the sense of “what is subjectively good for the public at large”) plays into the court’s decisions…
Ignoring Youtube for a minute and getting back to the Google’s Books case… The court just decided that irrespective of the copyright holder rights, Google is providing a valuable and transformative service that is in their view protected by fair use.
In a sense they just decided that the “good” the services provides to the public at large outweighs the “bad” of violating the rights of the copyright holder.
All of your arguments against what Google does concern the “bad” they do, and you give no credence to the good…
Fair enough, you don’t have to look at things that way. But you are arguing from the point of view (Im assuming) of someone who holds copyright in Europe…
Go to the European courts and sue them under European law. US law has little influence there… Seriously, if you think you are right about what they do being illegally in your jurisdiction go ahead and sue them. Whats stopping you?
Fact is I don’t think the law is on your side, even in Europe… You may say it is, and since I no almost nothing about European law I can’t really argue… However, I suspect if what Google does with Youtube were really violating European laws someone would have sued them already and won.
In my limited experience European law is very pro-consumer (more than the US), and your arguments are not about anti-consumer activity, they are about anti-rightsholders activity. So go ahead, see how the courts see it…
Sure, and Google will exploit US law to strengthen their own business. Google also benefits from the US political system and how it is funded which gears the whole system towards strengthening big corporations. Courts inclusive.
Which is not all that surprising since Google have lawyers that will guide them towards the edges of US legal practice. Unlike Apple and Microsoft who’s business depends on copyright, Google can and will continue to weaken copyright practice by walking these borders and slowly eroding them by making the general public increasingly feeling entitled to whatever they gain (like on youtube).
Google use their money bag to create a big service at a loss. This service is so big that it becomes an indispensible marketing tool. That forces other players to accept their practice or they will become irrelevant. So if you want to sell you have to be on Google search, make as much available on Google Books as other players do and have a presence on Youtube (and Facebook and Twitter…).
That makes it look good in court, because other players are following. Nobody but Google could do stuff like. It would be too expensive to set up the initial infrastructure. Then they gradually can introduce monetizing features.
The first dose is free, then they gradually make you pay. Youtube initially had no intrusive advertising. Currently the advertising pressure is close to what you have on US TV. I personally am getting increasingly annoyed (I am not conditioned to intrusive advertising, I don’t have TV).
I don’t care about good/bad. I just don’t believe that Google does this because they are good or want to do good. They do it because they want to retain their “monopoly” in search and advertising. They seek areas where Microsoft is reluctant to enter because Microsoft rely on a strong copyright regime. Google do not need copyright at all to protect their business, that is their advantage. So they can over time work to erode the copyright-system by conditioning the general public over time.
They are a big US corporation. Seriously, you cannot sue a foreign company at all. And even if you could… in general you don’t get much money from suing outside the US, the legal costs tend to outweigh the benefits. The US awards much higher damages, it is a sue-happy country. Most european countries are not.
Impossible, they operate under US jurisdiction. They are untouchable in the same way that gambling sites that operates from small obscure countries are.
European copyright law is not unified, but tend to favour authors over publishers more than the US. You cannot sign away your authorship for instance. And the IP laws are practiced in a way that doesn’t favour big corporations to the same extent (like patents). Also the copyright regime tends to be stricter (and last longer) and publishers are held accountable. It is quite likely that youtube would have been viewed as a publisher with editorial responsibility, just like a newspaper.
So the US copyright regime is weaker, but you have other laws and practices that acts with it that big businesses benefits from (like the sue-happy regime, the hosting laws, DMCA). So you have a different situation. But since most big players in the US benefits from a strong copyright regime very few big corporations are geared towards eroding the copyright practice. Google is a notable exception.
They actively identify copyrighted material and pay for it by displaying ads. And yes – the copyright holders do get paid. Copyright holders being mainly studios, in case you thought otherwise.
Not true. It’s only the case when you are the originator of the infringement, not an intermediary. In US there is this thing called safe harbour.
(double post)
Edited 2013-11-15 21:27 UTC
A) Get your facts right, people don’t get sued for downloading a song. They get sued for distributing that song.
B) Bands, authors, singers and songwriters willingly publish their content to YouTube, so please….
C) Fair use is a doctrine of exceptions to copyright and limits copyrights to reasonable aspects. If fair use did not exist, – this would have been a clear cut violation of copyrights, but fair use limits copyrights in field of use.
PS: I hate when people come up with a scathing comment and have the audacity to use IMHO.
JAlexoid,
“A) Get your facts right, people don’t get sued for downloading a song. They get sued for distributing that song.”
Ah, maybe this could explain all the confusion! If we assume that only uploading/distribution full works were illegal, then suddenly a lot of the arguments here make a lot more sense.
However both uploading and downloading are violations of copyright law (at least in the US). The main reason copyright holders focus on uploaders is because P2P technology doesn’t reveal the existence of downloaders to 3rd parties (ie copyright holders). The only way to reveal a download is by uploading it oneself (something a copyright holders cannot do without implicating themselves).
http://www.copyright.gov/help/faq/faq-digital.html
Edited 2013-11-19 22:59 UTC
While one might argue that Google Books are only presenting parts of a novel, they do indeed present whole works in terms of poems and art-books. I think they are violating fair use. The courts would never accept this from a real person.
What they are doing is equivalent to publishing invidual tracks from a music CD because it is only 10% of the CD. It is still a copyright violation.
Something is very wrong with this ruling. Is it OK to publish 10% of a 500 page collection of comic books bound together, but not OK to publish 100% of the same 50 page individual comic book? Makes no sense whatsoever. Google would still be presenting the same work, and the full work at that.
Guess what, an image is a full work in it’s own right, even if it is part of a book. Displaying it in order to earn money from advertising without permission pretending that it is a catalogue is dubious.
What this means now is that you loose your rights as an artist if your artworks are bound together in a book. So you better not do it. It also means that DRM hell actually becomes legitimate. If big corporations don’t have to heed copyright the natural solution is for publishers to stop publishing and start making works available for renting under strict terms.
Well, the world’s court systems have never been sane. The US is no exception, obviously.
(and why doesn’t OSNews support utf-8 in the comment title? :^)
Edited 2013-11-15 18:55 UTC
(Of course if Google always seek permission when displaying images and poems etc then they are ok… I am merely arguing this in terms of principles.)
Edited 2013-11-15 19:30 UTC
So… Wherever the author is unreachable of the copyright has passed onto an unknown entity, we just give up and burn the work of art?
I mean… If you can’t read it out loud without author’s permission, then you should just give up on what might be a valuable piece of human knowledge/culture.
Google is building a monopoly of books. It’s free now… does anyone seriously think it will be free later, after they decide they have to “monetarize” their asset?
When I first read the title I understood “scamming”, not “scanning”.