Google book search: fair use or fairly useful infringement?

• Author: Wilhelm, Thomas E.

1. INTRODUCTION

   Google has an ambitious mission statement: "... to organize the world's information and make it universally accessible and useful." (1) As part of this mission, Google created what was initially known as "GooglePrint," but more recently has been dubbed "Google Book Search," (2) the goal of which is to digitize the entire collections of several libraries to create a text-searchable database. (3) Google is making something we can already do--go to a library or bookstore and skim through books without purchasing--easier, but is being charged with copyright infringement in the process. The net result of Google's efforts will be a benefit to society, in furtherance of the purpose of copyright protection "to promote the Progress of Science and Useful Arts." (4) Google's creation will also benefit publishers and authors, making their content more readily available and easier to purchase. (5)

   Google's plan is being challenged in several lawsuits. (6) One by several individual authors, (7) a second by the Author's Guild, (8) and another by a group of publishers, (9) each alleging copyright infringement. (10) Google maintains that its actions are not infringement, but rather, fair use. (11)

   At first, Google intended to scan the entire contents of the libraries, without respect to copyright. Google then announced it would halt the scan of copyrighted works until a later date to give publishers time to "opt-out" of the program. (12) The publishers responded that this was not enough; they requested more information about the program without saying what would be enough. (13) Google's plan all along, though, was to provide a different and less inclusive display of copyrighted works. While to consumers Google Book Search is one product, behind the scenes it is actually two separate projects: "The Google Library Project" (14) (scanning of library books) and "The Google Partner Program" (15) (allowing publishers to submit their books for inclusion in the database).

   For books found to be in the public domain, (16) conducting a search in the Google Book Search database reveals an entire scanned page of the book, as well as the ability to browse through the entire book electronically, one page at a time. (17) In addition, links to where the book can be purchased online are provided. (18) Of course, one of the big issues is determining whether a book has entered the public domain or is still under copyright protection. (19) Google has not given any indication of who will make this determination. (20)

   For books found to be under copyright protection, conducting a search will reveal only bibliographic information and "a few short sentences of text around your search term;" Google calls this display "snippets." (21) In addition, links that can locate this book at a local library or for purchase online are created when a search is conducted. (22) Some publishers have given permission for users to view a limited number of entire pages in addition to the snippet view. (23) Book publishers can also submit their books electronically to Google Book Search (24) and include a link to purchase the book directly from them. (25) If the publisher does not want a book to be available at all in the Google Book Search database, that publisher can fill out an "opt-out" form to exclude their books from the process. (26)

   Other companies have also recently announced that they are attempting to create similar online databases of scanned books, potentially in response to Google's project. Yahoo is participating in the "Open Content Alliance" and will scan and make available only public domain books. (27) In sharp contrast to Google, Yahoo has announced that the books it scans will be available through any web search interface, not just those users who search using their search engine. (28) Microsoft and its MSN service later joined the Open Content Alliance, but appear to be focusing on how to add a pay service, such as a per-page or per-chapter fee. (29)

   Perhaps in response to the move by Yahoo and MSN to have a pay per page service, both Google and Amazon.com announced plans to develop similar micro-payment services as well. (30) Presumably such direct commercial sale of pages or entire books would be conducted under a license from the publisher. (31)

   Another substantial issue is advertising revenue. Google makes money through selling advertising on its web pages. (32) In fact, one of the selling points for Google's advertising system is that advertising links are created based on the search conducted by the user. (33) Advertising within the Google Book Search program operates in the same way, with advertising based on the context of the search conducted. (34) Google's indirect commercial gain from advertising will be considered under the fair use analysis.

   It has been suggested that while Google's actions are not fair use and thus constitute copyright infringement, the book search project "fit[s] in well with the spirit of innovation that the copyright laws are meant to protect, and not something the law or its application should obstruct." (35) It has also been argued that the project is fair use, and alternately, that the implied license concept should be applied. (36) Finally, it has been proposed that the analysis is simply too close, and that a digital library "safe harbor" legislative solution is required. (37)

   Conversely, this note argues that Google's inclusion of copyrighted works in Google Book Search is not copyright infringement, but rather is fair use. In doing so, this note will evaluate the potential statutory exemptions that allow the copying of protected works. First, this note will provide an overview of the library exemption and conclude that it probably does not apply to Google Book Search. A discussion of the fair use exemption follows, including consideration of recent cases applying the four part fair use test and how these decisions might influence courts hearing cases against Google. Finally, this note concludes by explaining that the fair use exemption should apply to Google Book Search based mainly on the transformative character and non-superseding use of the copyright protected material.

2. LIBRARY EXEMPTION

   It is unlikely that Google's actions will fall under the Library Exemption. (38) Under the exemption, a library or archive is allowed to (1) create one copy, by (2) employees working within the scope of employment, (3) where the "reproduction or distribution is made without any purpose of direct or indirect commercial advantage," and (4) the reproduction contains a copyright notice, if (5) the library is open to the public or to those doing research. (39)

   There has been scant litigation on this part of the Copyright Act. (40) Most of the case law that mentions the library exemption focuses on side issues, such as whether copying articles for research is acceptable, (41) at what step public distribution is accomplished by a library, (42) or whether a video rental store qualifies as a library. (43)

   The fact that Google has even an indirect commercial purpose in displaying pages of the copyrighted works (in selling advertisements on the web pages where search results are displayed) might negate applying the library exemption. (44) The legislative history of recent modifications to the Copyright Act as part of the Digital Millennium Copyright Act (DMCA) also indicates that "digital libraries and archives that exist only in the virtual (rather than physical) sense on ... the Internet" are not part of the library exemption. (45) Finally, the courts have stated that the library exemption does not cover the creation of databases comprised of other works. (46)

   Google Book Search might be able to exist under the library exemption if they actually purchased each book and created a "brick and mortar" library. (47) Because the library would no longer exist only virtually, this might overcome the restrictive DMCA language. While the advertising revenue would still present a problem, Google could also choose not to have advertising on the search result pages. (48) Read literally, the statutory language regarding "direct or indirect commercial advantage" applies only to the "reproduction or distribution" of the copy, not to the overall commercial purpose of the business. (49)

   Finally, although the application of the library exemption seems doomed from the start, there is a significant analogy to be made to the user experience. A library user can copy a "small part" of a copyrighted work if the library (1) "has had no notice that the copy ... would be used for any purpose other than private study, scholarship, or research" and (2) prominently displays a copyright notice. (50) Like at a traditional library, Google's snippets provide only a small part of the copyrighted work. Google's snippets would have no use besides study, scholarship, or research because they are too small to be useful for any other purpose. Because the nature of an online service would make it substantially easier to include the required copyright notice on each page, Google would actually do a better, more thorough job of complying with the statutory requirements than a traditional library, where patrons are extremely unlikely to include such a notice.

   Unfortunately, under the current statutory language, it seems unlikely that the library exemption can apply to Google Book Search. Perhaps future revisions of the Copyright Act will take into account technological advances of recent years, and will revise the exemption to include virtual libraries.

3. FAIR USE TEST

   Though the rigid library exemption arguably does not apply to Google Book Search, Google's actions in creating Google Book Search are more likely to fall under the fair use exemption of the Copyright Act. (51) "Fair use" is a court created doctrine (52) that is a mixed question of law and fact, (53) incorporated into the Copyright Act. (54) The doctrine is an "equitable rule of...