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31 Oct 2005

The real legal issue with Google Print Copyright Law

The Google Print suit is really a fairly arcane technical disagreement about the limits of fair use dressed up in apocalyptic language. One reason it's dressed up is that's how the Authors Guild works (we're authors, after all), and the other is that anything involving Google might involve lots of money.

The disagreement is about when it's permissible to make full copies of works as part of the process of doing something else. This question came up with respect to computer software a long time ago, and was settled in favor of copying. The process of installing and running software on a computer involves making large numbers of copies, which are legal, and you can even make backup copies of software without permission, albeit that last one was written into the law to make it clear.

When the web was young, this issue appeared yet again, in the context of web caches, both site caches like Squid and the browser cache found in Mosaic and all of its descendents. We heard the same arguments, based on the tollbooth model: the caches are making copies of my web page without my permission. (I believe the practical issue was the era mistake of pay-per-view web ads.) It was resolved sensibly, since you can't run the web without caches, by providing technical means to mark a page as no-cache in the few cases when the page owner really wants it.

When web indexes arrived, it came up again. Manual web directories like Yahoo and dmoz only involve manually copied snippets of the pages in the index, but mechanically generated indexes like Lycos, Altavista and Google involve making copies of the whole pages and extracting the index terms. Once again people cried foul, and there are still a few suits bouncing around in court, but it's pretty well established that it's legal to run a web index even though it involves making copies of the pages to create the index, and if people don't want their pages indexed, they can opt out.

Now we arrive at Google Print for libraries, indexing books the way that Google indexes web pages. To me the legal situation looks a whole lot like a web index.

Let's imagine that I were to set up a manually managed index called YahBook that involved shipping container loads of books to Bangalore where my skilled staff read them and created index entries, like a card catalog plus snippets to use as search keys. I don't think many people would argue that was illegal. But Google doesn't have a staff, they have computers, and as with web indexes, you can't make a full text index without a full copy of the underlying material.

Here's the disagreement. One viewpoint says that this is the same issue as web indexes, the index is OK, so that makes the intermediate full text copies required to compile the index OK, too. The other (which I disparage as the tollbooth argument) is that full copies have never been fair use before and they're not now, full stop, regardless of the context, the fact that they're not available to the public, etc. It's obvious which way I feel, but I think that reasonable people can differ, albeit not with the histrionics offered by the AG.

A lot of the arguments that have been introduced are red herrings. Some argue that Google is providing full pages of books without permission, which they're not, or that you can reverse engineer the book from the index as was possible with Amazon's book scans, but Google has taken pains to prevent that, too. Some argue that even though Google isn't providing full copies now, they might change their mind so we have to stop them now, an argument too silly to refute.

The issue really hinges on the technical legal question of whether making a private electronic copy of a book as an intermediate stage of creating an allowable index is fair use. This is an interesting legal question, and I look forward to legal analysis by people who understand the law better than I do, but I hope we can skip the nonsense and concentrate on the real issues at hand.

Claimer: I'm a published author who's gotten the bulk of my income in the past decade from book royalties, I'm a member of the Authors Guild, I have done some work for Google, and I show Adsense ads on some of my web sites and get paid a modest amount for them.

posted at: 10:03 :: permanent link to this entry :: 0 comments
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