Even Tim O'Reilly isn't always right

I'm just little-ol-me, a lowly acq-ed and Tim O'Reilly is one of the giants of our industry. But, he's wrong in his opinion on the Google Library project in a recent NYT article. The issue isn't whether what Google wants to do is good for publishers or bad, or good for authors or bad. The issue is: is Google Library and an opt-out mechanism for preventing Google from reproducing books legal under U.S. copyright law?

To me, Google seems clearly in the wrong legally here. There can be no doubt or questioning of definitions that Google's plan to scan entire books is "reproducing" them.  No, I'm not confused and they're not displaying entire works, but they scanning and storing entire works which is reproducing entire works.

From there, I just don't see anything in copyright law section 107 defining "fair use" that would qualify this as fair use since they are reproducing entire works and this is clearly for commercial benefits. That makes (1) and (3) in section 107 fall squarely against Google. They'd need to find a court that finds their arguments that Google Library's effects on the market or value of the work not just to be neutral but to be so verifiably positive in most or all cases as to clearly benefit the publisher so much to override (1) and (3) with (4). I've got no law education but that seems like a great leap into the unknown for a court.

What about section 108 for reproduction by libraries and archives? I don't see anything here that allows a commercial entity (Google) to do this and (a)(1) stating as a requirement "the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;" seems to be pretty easily proven to be violated since Google will benefit from advertising sales on hits.

BTW,  here's the definition of "copies" from the "definitions:"

”Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Google is making copies of the physical books onto a physical electronic storage device (machine) of some type.

Google's Opt-out plan doesn't fly either. Section 106 gives the copyright owner exclusive rights to make or authorize reproductions. Google can't legally authorize themselves to do this with copyrighted materials owned by someone else. Plain and simple.

So, again, I'm in over my head here. But it seems to me to be clear that the law doesn't allow what Google wants. The only question should be, should the law be changed to make what Google is doing legal?

Comments

[Rogers Cadenhead]

This is a weird case. If I had a copy of the world's most useful computer book (let's call it Movable Type Bible Desktop Edition), and I made a practice of sending one page of the book to people who asked a question answered by that page, would I be violating Wiley's copyright? Selective quotation of a book is fair use. Is repeated selective quotation of a book still fair? Thank God we have wealthy corporations with high-powered intellectual property lawyers who can answer this question for us.

[Jim Minatel]

That would fall into 107 (3) regarding the amount and substantiality of the material copied. Nothing in 107 makes any distinction between making a copy of a whole lot of something all at once versus a whole lot of something by copying little bits at a time. That's just a "serial right" I think.

And of course, just how large/small that "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" is isn't defined in the law. Even the old "250 words or less" rule of thumb that most of us grew up learning seems to be more either urban legend/wive's tale than something that's been specifically settled by case law. If there's case law that actually defined that amount, I'd love it if someone pointed it out.

Now in the case of the world's most useful book, Movable Type Bible Desktop Edition, once the courts see how your use of it this way brings about world peace and ends hunger, poverty, and disease, I'm sure the court would brush aside copyright law for the greater good of humanity.