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LAW PUNDIT Wednesday, September 28, 2005 9/28/2005 12:38:00 AM [Home]
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Author's Guild v. Google Print (GooglePrint)
With reference to our immediately previous posting, we have looked around the blogosphere for important opinions on the suit by the Author's Guild against Google and have found the following, to which we add our own grain of salt, as appropriate.
Lawrence Lessig at Lessig Blog comments:
"So too should common sense revolt at the claims of this law suit. I’m an academic, so this is a bit biased, but: Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible."
Eric Goldman in his Technology & Marketing Law Blog comments on the precedential case of Kelly v. Arriba Soft Corporation, writing:
The Ninth Circuit found that displaying thumbnail versions of photographs was fair use. The Ninth Circuit also originally found that displaying the full-size versions of the photos would not be fair use, although the Ninth Circuit (18 months later) realized that it had ruled on a question that neither party had litigated, and it withdrew that part of the opinion. The resulting mess of the case is so confusing and questionable as precedent that I don't teach the case in Cyberlaw."
However, in the view of LawPundit, the logic of the court's revised ruling in Kelly v. Arriba Soft Corporation on the "fair use" of thumbnail images by a search engine is in fact quite clear. We quote our excerpted version below, which omits original footnotes, although some of their relevant content is included by us in our own bracketed writing:
The Opinion filed February 6, 2002, slip op. 1953, and appearing at 280 F.3d 934 (9th Cir. 2002), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit....
T.G. NELSON, Circuit Judge [delivered the opinion of the Court]:
...
A claim of copyright infringement is subject to certain statutory exceptions, including the fair use exception. This exception [citing Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997)] "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." The statute sets out four factors to consider in determining whether the use in a particular case is a fair use. [The four factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.] We must balance these factors in light of the objectives of copyright law, rather than view them as definitive or determinative tests. We now turn to the four fair use factors.
1. Purpose and character of the use.
[This part of the opinion can be applied in the case of Author's Guild v. Google to the argument that Google's Google Print project constitutes copyright infringement because Google is a commercial enterprise. This argument does not hold. Transformative use is permitted, also by commercial enterprises.]
The Supreme Court has rejected the proposition that a commercial use of the copyrighted material ends the inquiry under this factor. Instead, [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)] "[t]he central purpose of this investigation is to see ... whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative."
The more transformative the new work, the less important the other factors, including commercialism, become. There is no dispute that Arriba operates its web site for commercial purposes and that Kelly’s images were part of Arriba’s search engine database. As the district court found, while such use of Kelly’s images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use. Arriba was neither using Kelly’s images to directly promote its web site nor trying to profit by selling Kelly’s images.
Instead, Kelly’s images were among thousands of images in Arriba’s search engine database. Because the use of Kelly’s images was not highly exploitative, the commercial nature of the use weighs only slightly against a finding of fair use. The second part of the inquiry as to this factor involves the transformative nature of the use. We must determine if Arriba’s use of the images merely superseded the object of the originals or instead added a further purpose or different character. We find that Arriba’s use of Kelly’s images for its thumbnails was transformative.
Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose.
Arriba’s search engine functions as a tool to help index and improve access to images on the internet and their related web sites....
This case involves more than merely a retransmission of Kelly’s images in a different medium.
Arriba’s use of the images serves a different function than Kelly’s use — improving access to information on the internet versus artistic expression.... Because Arriba’s use is not superseding Kelly’s use but, rather, has created a different purpose for the images, Arriba’s use is transformative.
The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress created the fair use exception. Arriba’s use of Kelly’s images promotes the goals of the Copyright Act and the fair use exception. The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information-gathering techniques on the internet.
[Those above statements in the opinion support Google Print. Indeed, this is Google's strongest argument. Google Print actually promotes the INTENT of the Copyright Act.]
2. Nature of the copyrighted work.
[In the case of Google Print, the works to be scanned in libraries and to be listed on Google are published works which the copyright holders intended for public consumption. Accordingly, the public also has the RIGHT to be able to find these works and to discover what they are about using modern search methods, without this being a copyright infringement.]
[Citing A&M Records, 239 F.3d at 1016 (citing Campbell, 510 U.S. at 586)]
"Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works." Photographs that are meant to be viewed by the public for informative and aesthetic purposes, such as Kelly’s, are generally creative in nature. The fact that a work is published or unpublished also is a critical element of its nature. Published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred....
3. Amount and substantiality of portion used.
[In the case of Author's Guild v. Google, it would appear - according to the logic of Kelly v. Arriba Soft Corporation - that scanning of entire books is permitted if the purpose and character of use is transformative and such scanning is required to perform the permissible transformative use.]
[Citing Worldwide Church of God, 227 F.3d at 1118]
"While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use." However, the extent of permissible copying varies with the purpose and character of the use. If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her. This factor neither weighs for nor
against either party because, although Arriba did copy each of Kelly’s images as a whole, it was reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.
[That same logic applies to books and finding the material presented in them.]
4. Effect of the use upon the potential market for or value of the copyrighted work.
[There may be individual cases unknown to us where the scanning and listing of works on search engines might harm the potential market for or value of a copyrighted work, but 99% of all published works would not be harmed in their potential market or value in any way. Indeed, a good percentage of authors would find that the potential market or value of the copyrighted work would increase because Google Print would provide the opportunity that their works - and especially the content of those works - be findable by the public.]
This last factor requires courts to consider [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994), quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][4] (1993)] "not only the extent of market harm caused by the particular actions of the alleged infringer, but also 'whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original.'" A transformative work is less likely to have an adverse impact on the market of the original than a work that merely supersedes the copyrighted work.... Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images. By showing the thumbnails on its results page when users entered terms related to Kelly’s images, the search engine would guide users to Kelly’s web site rather than away from it....
CONCLUSION
We hold that Arriba’s reproduction of Kelly’s images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act."
Scrivener's Error points out accurately that the actual copyright to most trade books still resides with the author but then goes forward to make the error in thinking that Google's opt-in or opt-out option has any major relevance for the judicial decision in this case. It does not. The major question is whether Google's scanning of library books for the purposes of listing such books on a search engine is a transformative use - and the answer can only be - yes, it is, depending upon how that material is presented online. The opt-in or opt-out function has merely to do with the time at which a copyright holder gives permission - which is in fact not even required for a transformative use.
William Patry has changed his mind from his original opinion at The Patry Copyright Blog after reading Jonathan Band's legal analysis in the interim. He writes at Google Revisited:
"So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute."
Such a change of heart can only be based on a better subsequent analysis of the applicable law, which, in our view, clearly favors Google.
Mike Madison at the Conglomerate writes:
"Books are really, really important things culturally, particularly in Western culture. Have been for hundreds of years. Almost everyone loves books and depends on books. And books are absolutely central to modern copyright law, both conceptually and doctrinally. (They're even more important than authors, in my view. But I'll take on one controversial topic at a time.) Books are fixed, limited containers of creativity. Books have beginnings, middles, and ends. Without books, we wouldn't have "works," and without "works" we wouldn't know how to process questions of incentives and questions of access. We wouldn't know where to put the author's "moral right," if there is one; we wouldn't know what to refer to when we make "fair use" of a work. We wouldn't know what to distribute, and distribution of creativity is the ultimate goal of the whole system."
Susan Crawford blog writes:
"Get interested in GooglePrint. It's one of the best plans that Google has, and it needs to happen. No one is going to bring more books to the attention of the world -- and help more authors -- than Google. Here are all the reasons that we should applaud Google for going forward with GooglePrint, and all the reasons why Google will prevail in the (sadly) recently-filed lawsuit."
Solveig Singleton at IPcentral Weblog predicts that Google will settle the case. Our opinion is that Google would be idiots to give in. They are in the right.
This class action is a violation of the spirit of the Class-Action Fairness Act of 2005. Some few are trying here to profit at the expense of the rest of the authors of the country. No damage has been done and yet some authors already want to obtain damage payments of some kind. The Author's Guild has no right to try to represent copyright holders in a class action for a right which is individual to each copyright owner. The class action suit by the Author's Guild against Google is nothing more than an attempted preemption of that individual right of copyright. This is a far greater danger to copyright owners' rights than anything that Google is doing.
See also Scrivener's Error for a listing of errors in the Author's Guild class action complaint.
James DeLong at IPcentral Weblog observes:
"Google might well win a decision that copying a whole book so that individualized snippets can be made available is itself a fair use because it greatly reduces overall transaction costs in the society. I find this argument persuasive, though it would be interesting to hear the other side."
Andrew Raff at IPTA Blog in "Google, Publishers, Copies and "Being Evil" has a good overview of blog postings on this topic.
Update, 28 September 2005, Technorati Tags:
copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, GooglePrint, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization.
.
Permalink : Andis Kaulins : 9/28/2005 12:38:00 AM
Author's Guild v. Google Print (GooglePrint)
With reference to our immediately previous posting, we have looked around the blogosphere for important opinions on the suit by the Author's Guild against Google and have found the following, to which we add our own grain of salt, as appropriate.
Lawrence Lessig at Lessig Blog comments:
"So too should common sense revolt at the claims of this law suit. I’m an academic, so this is a bit biased, but: Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible."
Eric Goldman in his Technology & Marketing Law Blog comments on the precedential case of Kelly v. Arriba Soft Corporation, writing:
The Ninth Circuit found that displaying thumbnail versions of photographs was fair use. The Ninth Circuit also originally found that displaying the full-size versions of the photos would not be fair use, although the Ninth Circuit (18 months later) realized that it had ruled on a question that neither party had litigated, and it withdrew that part of the opinion. The resulting mess of the case is so confusing and questionable as precedent that I don't teach the case in Cyberlaw."
However, in the view of LawPundit, the logic of the court's revised ruling in Kelly v. Arriba Soft Corporation on the "fair use" of thumbnail images by a search engine is in fact quite clear. We quote our excerpted version below, which omits original footnotes, although some of their relevant content is included by us in our own bracketed writing:
The Opinion filed February 6, 2002, slip op. 1953, and appearing at 280 F.3d 934 (9th Cir. 2002), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit....
T.G. NELSON, Circuit Judge [delivered the opinion of the Court]:
...
A claim of copyright infringement is subject to certain statutory exceptions, including the fair use exception. This exception [citing Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997)] "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." The statute sets out four factors to consider in determining whether the use in a particular case is a fair use. [The four factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.] We must balance these factors in light of the objectives of copyright law, rather than view them as definitive or determinative tests. We now turn to the four fair use factors.
1. Purpose and character of the use.
[This part of the opinion can be applied in the case of Author's Guild v. Google to the argument that Google's Google Print project constitutes copyright infringement because Google is a commercial enterprise. This argument does not hold. Transformative use is permitted, also by commercial enterprises.]
The Supreme Court has rejected the proposition that a commercial use of the copyrighted material ends the inquiry under this factor. Instead, [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)] "[t]he central purpose of this investigation is to see ... whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative."
The more transformative the new work, the less important the other factors, including commercialism, become. There is no dispute that Arriba operates its web site for commercial purposes and that Kelly’s images were part of Arriba’s search engine database. As the district court found, while such use of Kelly’s images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use. Arriba was neither using Kelly’s images to directly promote its web site nor trying to profit by selling Kelly’s images.
Instead, Kelly’s images were among thousands of images in Arriba’s search engine database. Because the use of Kelly’s images was not highly exploitative, the commercial nature of the use weighs only slightly against a finding of fair use. The second part of the inquiry as to this factor involves the transformative nature of the use. We must determine if Arriba’s use of the images merely superseded the object of the originals or instead added a further purpose or different character. We find that Arriba’s use of Kelly’s images for its thumbnails was transformative.
Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose.
Arriba’s search engine functions as a tool to help index and improve access to images on the internet and their related web sites....
This case involves more than merely a retransmission of Kelly’s images in a different medium.
Arriba’s use of the images serves a different function than Kelly’s use — improving access to information on the internet versus artistic expression.... Because Arriba’s use is not superseding Kelly’s use but, rather, has created a different purpose for the images, Arriba’s use is transformative.
The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress created the fair use exception. Arriba’s use of Kelly’s images promotes the goals of the Copyright Act and the fair use exception. The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information-gathering techniques on the internet.
[Those above statements in the opinion support Google Print. Indeed, this is Google's strongest argument. Google Print actually promotes the INTENT of the Copyright Act.]
2. Nature of the copyrighted work.
[In the case of Google Print, the works to be scanned in libraries and to be listed on Google are published works which the copyright holders intended for public consumption. Accordingly, the public also has the RIGHT to be able to find these works and to discover what they are about using modern search methods, without this being a copyright infringement.]
[Citing A&M Records, 239 F.3d at 1016 (citing Campbell, 510 U.S. at 586)]
"Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works." Photographs that are meant to be viewed by the public for informative and aesthetic purposes, such as Kelly’s, are generally creative in nature. The fact that a work is published or unpublished also is a critical element of its nature. Published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred....
3. Amount and substantiality of portion used.
[In the case of Author's Guild v. Google, it would appear - according to the logic of Kelly v. Arriba Soft Corporation - that scanning of entire books is permitted if the purpose and character of use is transformative and such scanning is required to perform the permissible transformative use.]
[Citing Worldwide Church of God, 227 F.3d at 1118]
"While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use." However, the extent of permissible copying varies with the purpose and character of the use. If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her. This factor neither weighs for nor
against either party because, although Arriba did copy each of Kelly’s images as a whole, it was reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.
[That same logic applies to books and finding the material presented in them.]
4. Effect of the use upon the potential market for or value of the copyrighted work.
[There may be individual cases unknown to us where the scanning and listing of works on search engines might harm the potential market for or value of a copyrighted work, but 99% of all published works would not be harmed in their potential market or value in any way. Indeed, a good percentage of authors would find that the potential market or value of the copyrighted work would increase because Google Print would provide the opportunity that their works - and especially the content of those works - be findable by the public.]
This last factor requires courts to consider [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994), quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][4] (1993)] "not only the extent of market harm caused by the particular actions of the alleged infringer, but also 'whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original.'" A transformative work is less likely to have an adverse impact on the market of the original than a work that merely supersedes the copyrighted work.... Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images. By showing the thumbnails on its results page when users entered terms related to Kelly’s images, the search engine would guide users to Kelly’s web site rather than away from it....
CONCLUSION
We hold that Arriba’s reproduction of Kelly’s images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act."
Scrivener's Error points out accurately that the actual copyright to most trade books still resides with the author but then goes forward to make the error in thinking that Google's opt-in or opt-out option has any major relevance for the judicial decision in this case. It does not. The major question is whether Google's scanning of library books for the purposes of listing such books on a search engine is a transformative use - and the answer can only be - yes, it is, depending upon how that material is presented online. The opt-in or opt-out function has merely to do with the time at which a copyright holder gives permission - which is in fact not even required for a transformative use.
William Patry has changed his mind from his original opinion at The Patry Copyright Blog after reading Jonathan Band's legal analysis in the interim. He writes at Google Revisited:
"So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute."
Such a change of heart can only be based on a better subsequent analysis of the applicable law, which, in our view, clearly favors Google.
Mike Madison at the Conglomerate writes:
"Books are really, really important things culturally, particularly in Western culture. Have been for hundreds of years. Almost everyone loves books and depends on books. And books are absolutely central to modern copyright law, both conceptually and doctrinally. (They're even more important than authors, in my view. But I'll take on one controversial topic at a time.) Books are fixed, limited containers of creativity. Books have beginnings, middles, and ends. Without books, we wouldn't have "works," and without "works" we wouldn't know how to process questions of incentives and questions of access. We wouldn't know where to put the author's "moral right," if there is one; we wouldn't know what to refer to when we make "fair use" of a work. We wouldn't know what to distribute, and distribution of creativity is the ultimate goal of the whole system."
Susan Crawford blog writes:
"Get interested in GooglePrint. It's one of the best plans that Google has, and it needs to happen. No one is going to bring more books to the attention of the world -- and help more authors -- than Google. Here are all the reasons that we should applaud Google for going forward with GooglePrint, and all the reasons why Google will prevail in the (sadly) recently-filed lawsuit."
Solveig Singleton at IPcentral Weblog predicts that Google will settle the case. Our opinion is that Google would be idiots to give in. They are in the right.
This class action is a violation of the spirit of the Class-Action Fairness Act of 2005. Some few are trying here to profit at the expense of the rest of the authors of the country. No damage has been done and yet some authors already want to obtain damage payments of some kind. The Author's Guild has no right to try to represent copyright holders in a class action for a right which is individual to each copyright owner. The class action suit by the Author's Guild against Google is nothing more than an attempted preemption of that individual right of copyright. This is a far greater danger to copyright owners' rights than anything that Google is doing.
See also Scrivener's Error for a listing of errors in the Author's Guild class action complaint.
James DeLong at IPcentral Weblog observes:
"Google might well win a decision that copying a whole book so that individualized snippets can be made available is itself a fair use because it greatly reduces overall transaction costs in the society. I find this argument persuasive, though it would be interesting to hear the other side."
Andrew Raff at IPTA Blog in "Google, Publishers, Copies and "Being Evil" has a good overview of blog postings on this topic.
Update, 28 September 2005, Technorati Tags:
copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, GooglePrint, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization.
.
Permalink : Andis Kaulins : 9/28/2005 12:38:00 AM
......Creative Commons License