More legal action against Google Print. So some publishers are upset that Google will be scanning and providing limited access to their books. I wonder if it’s the same publishers that use Google to sell expensive reprints of scholarly work, by allowing Google to index the content of online journals and publications, but redirecting attempts to see the resources indexed to pages which offer to sell the articles for $20 or so a pop? And of course we know how much of that $20 scholars get.
(Given this and the previous entry, I might need to add an “irony” category here.)
Really, I don’t see the problem with what Google is doing. They aren’t going to display full works, but just the context around search keywords. They are restricting copying, saving, and the like. They are providing an opt-out mechanism. They are inviting publishers to control what is and isn’t indexed. As Jonathan Band has done, we could apply the four-part fair use test here–I base this on use of GP:
1. The purpose and character of the use.
GP is designed to make books searchable by keyword. It does not present entire copyrighted works in easily reproduceable forms. Not all pages are made available in search results. For certain pages, the user has to log in. Search results are presented as low-quality images which don’t look very good when printed and, I imagine, would perform poorly with OCR. You can save the images with indirect means, but right-click and “Save” is disabled. Hence, I don’t believe using GP to grab an entire book, page by page, would be easier than copying a book with a photocopy machine; the work is highly transformed, which for this test is a good thing.
2. The nature of the copyrighted work.
This will vary, but most (if not all) of the books in GP will be published, which clicks with fair use; if GP were indexing unpublished manuscripts the use might be problematic. The content GP indexes is identical to that reviewed in magazines, cataloged and shelved by libraries, etc.
3. The amount and substantiality of the portion taken.
Here I think GP doesn’t map well onto existing law: while the entire work is indexed, it is not revealed to the user in the same way it is indexed. “Taken” just doesn’t fit into the electronic search use scenario in the same way it does for quotation in a review or for scholarship.
4. The effect of the use upon the potential market.
Arguably, GP increases the potential market for the books by encouraging their purchase through the “Buy this book” links displayed with search results. Because GP is a free service, it does not favor one publisher over another. If it were possible to rip entire books out of GP, the publishers’ case would be much stronger. But I don’t think that’s the case.
If Google loses this case—if it’s not legal to index entire books because they are copyrighted—might that be precedent for arguing that it’s also unlawful to index entire websites?