Kanaka Bakshi

Mairon Brandwajn

Ilir Dobi

Prof. Alexander

April 19 2006

Foundations of Business Law

Google Benefits Society

“‘Even before we started Google, we dreamed of making the incredible breadth of

information that librarians so lovingly organize searchable online,’ said Page, who is

president of Google Products” (CNN.com). Google has undergone a huge project in

making access to information easier for people with a price tag which is close to one

hundred million dollars. This is a project which will digitalize the collections of several

of the biggest libraries such as the Harvard, Stanford, University of Michigan, Oxford

Universities and New York University. The main dispute between Google and the book

publishers that are suing Google falls under the fair use act. The fair use act contains

multiple points such as: the nature of the work, the amount of the works used, the effect

on the market for the work and also the purpose and character of the use. While focusing

on the last point, the purpose and character of the use of the works that are digitalized is

not for commercial use but instead it is for educational purposes. There are three main

reasons that show this: 1. Google is not trying to profit from showing the books online 2.

The whole book will never be shown 3. The project will increase demand for books.

Even though Google is a pro-profit organization, it is not trying to profit directly

from the showing of the books online. Google is making digitalized information available
to the public but in small portions. Also, relating to the facts, no advertisements are being

presented in the pages where the information will be shown to the public. Many people

might be wondering, since Google a pro-profit organization how are they making money

out of this? The way that they are making money is while having more people search for

books they will have links that would direct those specific users to other Google links

where they could look at goods they can purchase. An example to this case, where the

defendant is not directly trying to profit from certain information shown to the public is

Kelly v. Arriba Soft. In this case Arriba was making available certain pictures that were

already in display in Kelly’s website but in a miniaturized way, without showing the

whole picture. “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” (llrx.com).

In relation to the first point, when users type a certain term while searching for

their book, the result will be that only a small portion of the book will be shown. If in a

case where the books would be used for commercial use the whole book could be shown

and in this way Google could have greater profits rather than just showing a small portion

of the book. The reason that Google is just showing a small portion of the book is so the

user/customer will be able to find what they want and in this way, either buy the book

from the publisher or go to the library and check out the book. Another sign that shows

that the purpose of the project is for education purposes is that Google is directing its

users directly to the site where the book is sold in order for the users to buy the books that

they were looking for. This leads to the third point, which is that the project will increase

demand for books.

 Google is helping publishers and libraries to have an increased traffic of users

through the libraries and the publisher’s websites. “Without question, the Print Library

Project will increase the demand for some books” (llrx.com). In the library case, Google

will direct the user to the specific libraries that the books are found, enabling the used to

seek out the desired book in those libraries. This is in not in any way hurting the libraries

since users are just being helped by Google find whatever they were looking for. In the

case of publishers, where books could be bought online, Google will direct the user to the

specific sites to purchase that specific book. Going back to the original argument,

Google’s purpose is for educational purposes since they are not hurting the revenue of the

publishers, instead they are increasing their revenue and in the library case, Google is

only giving them more customers. There are no thinkable examples that would be result

in publishers or libraries being hurt by Google’s project.

The information is not “substantial” enough to fall into copyright infringement.

Copyright infringement refers to when any form or expression of an idea is copied.

Reproduction does not have to be the exact same, especially not in its entirety.

Only if a substantial part of the original is reproduced, can it be called a copyright

infringement.

This argument also falls under the “fair use” doctrine, which states that a person

can reproduce the original copyrighted materials without paying any sort of royalty.

To determine whether infringement occurs or not, the substantial amount needs to be

determined which would fall under infringement.

 The facts state that only a few sentences would be shown on the site, if the book

exists in the copyright category. In addition, a few pages would be shown only if the

book lies in public domain. The whole book would never be shown on the Google site.

Under the Print Library Project, Google plans to scan into its search database materials

from the libraries of Harvard, Stanford, and Oxford Universities, the University of

Michigan, and the New York Public Library. Users of the search program will be able to

browse the full text of public domain materials, but only a few sentences of text around

the search term in books, which are covered by copyright. This is a critical fact: for books

still under copyright, users will be able to see only a few sentences on either side of the

search term. Users will not see a few pages, or the full text, as for public domain works.

The substantial amount of books to be shown on the site can be determined only based on

its copyright background or in its belonging to public domain. If only a part of the book

or just a few sentences will be shown online, then Google is not profiting from this

Project and neither are they violating and Copyright Laws.

The fundamental determination is whether the quality and value of the material

copied from the original copyrighted work is "reasonable" in relation to the purpose of

copying the original. There exists no set rule that can determine the exact quantity or ratio

of words, sentences, or pages that may be allowed to be used from the original work.

Under the fair use, courts have to analyze the factors that exist to determine whether the

amount suggested is in fact substantial to avoid the copyright infringement. They have to

determine whether the total amount that was taken from the original is providing for the

reasons it was taken for actually or other than that. The courts have to analyze and

evaluate whether the user of the original copyrighted material has taken any more of the
original work than was necessary to achieve the purpose for which the material was

copied from the original work.

Google’s intention in this project is not to “hammer” the publishers. In fact, this

project would promote the books of the publishers. On the site, Google would just show

small snippets of the book, depending on its background of copyright or public or

government domain. This information would just be the right amount not to fall into

infringement, but give an idea of the book. The consumers can further look into the book

if interested, but not through Google. Google would connect to the book/publishers link

for more information, hence not gaining any profit here and avoiding the copyright

infringement.

This helps in better purchase decisions of the individuals also.

This argument addresses the authors/publishers objection of the amount of

information displayed on the site. Google is not making the entire book available to be

read online, especially not in the cases of copyrighted material. It only provides a snippet

of what you searched for. According to US copyright law, there is nothing wrong with

reproducing a small portion of a copyrighted book. That is all Google is doing.

We can see a similar situation in the Arriba vs. Kelley case. Arriba copied

pictures from different sites and one of the few was Kelley’s images in their search

engine database. But, the images were only thumbnails and to see the full image, the

browser would take you to the original site and not on Arriba’s search engine. The court

favored Arriba in the sense that the information/pictures shown were less for commercial

use and were shown in a small amount and falls under the fair use. The Ninth Circuit

court stated, “The extent of permissible copying varies with the purpose and character of
the use.” Id. Thus, "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."

Copyright law has always been about ensuring that authors will continue to write

books and publishers continue to sell them. By making books easier to find, buy, and

borrow from libraries, Google Book Search helps increase the incentives for authors to

write and publishers to sell books. To achieve that goal, we need to make copies of

books, but these copies are permitted under copyright law in a substantial amount to be

shown.

As the technology industry progresses authors, publishers, and owners of

copyrighted books, CDs, DVDs, data, magazines and others, in this digital age, face a

battle to maintain their own material fully licensed and under total economical control.

Google has started its Print Library Project, in which the company will present the public

with a few sentences from the copyrighted material scanned from public libraries. By

allowing Google to consummate this project, society will further benefit as the digital

media advances because the public will encounter published information more easily if

they decided to ultimately buy the book; also, people won’t have the burden to leave their

home or office to review a book; and, the publishing companies will have a great way to

showcase their products.

John Berry of Library Journal viewed the Google library program as “another

great leap forward for access to information, a paradigm shift in our time.” As for the

future of librarians, Berry said, “Every time anything like this comes even close, the role

of librarians is strengthened and made more central. This will happen again. We’ll go

back to our basics—evaluation and provision of information sources, helping people

authenticate currency, comprehensiveness, accuracy, and so forth.” It is important to

know that as technology progresses, so does the flow of information. With the installment

of the internet in the early 1990’s, information processing and communication has

multiplied by a factor of nine. Therefore, it is inevitable that to face the flow of

information, people have to benefit from electronic libraries such as Google’s (Quint).

Collecting books and/or reaching for them should be something of the past in this

age of digital media. Marjorie Hlava pointed out a practical consideration. “It costs $200

a square foot to maintain a library collection (heating, utilities, building costs, staff, etc.).

If I had 132 miles of shelf space and someone offered to digitize half of it, I’d be real

interested.” And, after the digitization, Hlava expected people would be tempted to

downsize their physical collections. OCLC’s Jordan agreed. He expected the libraries in

the program to “re-purpose” their funds, for example by building up their special

collections. "This is valuable content," said Allen Weiner, a research director at Gartner

Inc. "We've been focused on Web content, which has varying degrees of value, but this

has a built-in marketplace and built-in demand" (Hicks). When asked, “What effect will

this library-based digitization have on Google’s relationships with publishers? Is it

designed to push publishers into joining the Google Print program?” Patricia Schroeder,

executive director of the Association of American Publishers, commented on winners and

losers as Google enters this field. She saw it as giving a “huge pump to print-on-demand”

and said this development could “solve a lot of supply chain problems.” Building

acceptance of reading electronic texts, she thought, would encourage book sales by

lowering prices for e-books. But overall, Schroeder thought it would not threaten

publishers. “At the end of the day, what we can produce is creative, and that’s harder than
techies think it is. We will still need publisher staffs.” Schroeder considers reprint houses

and libraries to be vulnerable, however, which can lead to greater purchase decisions

(Quint). This argument takes us to our next point, the benefit for the publishing

companies.

The libraries are open to the public free of charge so why should the authors

complain about their works being available on the internet. Google is doing a good deed

for the publishers and the authors to get their names better known. The inexorable

transition into the age of e-libraries would be much smoother if publishers and authors

would want to magnify their profits by making a pact with Google to reap profits of

advertisements, if of course both sides agree.

Therefore, for the benefit of society, as we grow technologically, we must accept

Google’s public library. Google will not only benefit the public in that encountering

published information will be easily accessible and the burden to hold extensive files,

libraries, and actually going to public libraries to find such books will be a forgotten

malaise, but also the publishers and authors will have a great way of displaying their

products and maybe reap a profit. Progressive changes in society such as these always

end up in court. Let us make the process smooth so that the inevitable will triumph

without investing too much energy fighting against it.

Articles cited

1. The Authors Guild v. The Google Print Library Project

By Jonathan Band
14 Apr. 2006
Link- http://www.llrx.com/features/googleprint.htm

This article provided information regarding the “fair use” and Google’s incentives which
helped gain a better understanding of the case from Google’s point of view which favors
us as we are providing an argument for Google and their project. Along with the detailed
information regarding Google and the Copyright Act, it also provides for three cases that
help understand copyright infringement and under that the fair use which provide good
arguments and understanding for Google.

2. Google’s Library Project: Questions, Questions, Questions

by Barbara Quint

Link- http://www.infotoday.com/newsbreaks/nb041227-2.shtml

The article provides numerous different sorts of questions regarding Google and the Print
Library Project. This provides a view of the issue from many different standpoints that
helps strengthen arguments for Google as we come to know the arguments and issues
from both sides helping in gaining knowledge. Gaining information about both sides
helps us in providing stronger arguments.

3. Kupferschmid, Keith. “Are Authors and Publishers Getting Scroogled.” Information

Today 22.11 (2005): 4 Proquest. Babson College Horn Lib., Babson Park. 14 Apr. 2006
<http://proquest.umi.com>

This article contains the four sub points that fall under the “fair use” and it discusses,
according to other cases as well, to whom the court will decide in favor of. After reading
the article I found out that Google has little chances of falling under the fair use doctrine.
I will use the article to find out what might the other team possibly say to us.

4. Band, Jonathan. “The Authors Guild v. The Google Print Library Project” LLRX.com.
14 Apr. 2006 <http://www.llrx.com>

This is a very helpful article because it shows what Google has to say about their project
which is basically our argument. I will be able to use this article to create possible sub
points under my argument which falls under the fair use doctrine. It also contains three
cases which I could use to make even a stronger argument.

Cases:

(Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003)

Campbell v. Acuff-Rose, Music, Inc., 510 U.S. 569 (1994).

Stewart v. Abend, 495 U.S. 207, 236 (1990)