1. Jonathan Band Jonathan Band PLLC jband@policybandwidth.com Google Library Project: Copyright Issues

2. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Facts Much confusion about precisely what Google is doing. Scanning in perhaps up to 25 million volumes from 8 major research libraries into its search database. For books still in-copyright, will only show snippets in response to search request. Each snippet consists of only a few lines, and only three snippets can be shown per book. So, for an in-copyright book, in response to a particular search request, a user will only see 10-15 sentences.

3. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Facts Additionally, Google provides an opt-out. Any author or copyright owner can simply request Google not to scan his or her book into its search database. Publishers can opt into the Partner Program, where they share revenue with Google. So what’s the big deal? Why are publishers and authors suing Google?

4. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Legal Liability Google’s act of scanning a book into the search database, even though it displays only snippets to the public, involves copying which may infringe the copyright owner’s exclusive rights under the U.S. Copyright Act. In addition to scanning, Google is converting files into searchable format using Optical Character Recognition (OCR) software. Google also is making a copy of each file for participating libraries. From a technical legal perspective, it doesn’t matter that Google will honor opt-out requests. Generally, the burden would be on Google to ask permission to copy the books.

5. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Legal Liability Google will escape liability only if a court finds its copying permitted under the fair use doctrine. So the legal issue here is whether Google’s copying of all these library books into its search database is a fair use.

6. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Fair Use The fair use doctrine appears in the Copyright Act. Supreme Court has said that fair use is an equitable rule of reason, which permits courts to avoid rigid application of the copyright statute when it would stifle the very creativity which the law is designed to foster. Fair use is decided on a case-by-case basis, looking at the merits of each individual case.

7. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Fair Use Four statutory factors: Purpose and character of the use. Nature of the work. The amount and substantiality of the portion used. The effect of the use upon the market for the work.

8. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Kelly v. Arriba Soft There is a relevant precedent: Kelly v. Arriba Soft, 336 F. 3d 811 (9th Cir. 2003). Arriba Soft, a commercial search engine, created a search database of thumbnail images copied from the Internet. In response to search queries, Arriba Soft displayed responsive thumbnail images. If a user clicked on a thumbnail, he was linked to the original website where a full size image was displayed.

9. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Kelly v. Arriba Soft A photographer whose images on his website were included in the search database without his permission sued for copyright infringement. Both the trial court and the appellate court found Arriba Soft’s use of the thumbnail to be fair. The Ninth Circuit considered the four fair use factors set forth in the statute. Two of the four factors are most important here.

10. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Kelly v. Arriba Soft The court found that the first factor, the purpose and character of the use, weighed in favor of Arriba Soft. Although Arriba Soft was a commercial entity, its use did not supplant the original. Rather, Arriba Soft transformed the work by using it in a different way – as part of a search engine. And search engines have great social utility; without them, content cannot be found on the Internet.

11. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Kelly v. Arriba Soft The court also found that the fourth fair use factor, the effect of the use on the market for the work, weighted in favor of Arriba Soft. The court ruled that inclusion of the image in the search engine would not harm sales of the image. If anything, it will help sales by steering traffic to Kelly’s website.

12. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Google v. Kelly? Google believes that it has an even stronger case than Arriba Soft in Kelly. It is showing the user less of the work that Arriba Soft – snippets vs. thumbnails of the entire image. Also, an index to all the world’s books is more useful that Arriba Soft’s search engine. Moreover, Google is allowing owners and authors to opt out.

13. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Google v. Kelly? The publishers and authors suing Google argue that their case is very different from Kelly. Kelly placed his photo on his website, knowing that it would be included in a search engine. He could have used software “do not enter” signs to keep the search engine out. Thus, he gave an implied license to Arriba Soft. Google’s use will harm the market for the licensing of books to search engines. By digitizing the books, Google is placing them at risk of widespread infringement. Kelly involved just one plaintiff.

14. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Google v. Kelly? Finally, the publishers and owners argue that the Ninth Circuit made a mistake – that Arriba Soft’s use of Kelly’s image was not fair. But if that’s right, then Google, Yahoo, Ask, and MSN are all in big trouble because they copy billions of web pages.

15. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Final Thoughts Courts are very pragmatic. They will ask: Is this a socially valuable use? Could the goal have been accomplished in another manner? Are the owners really harmed? A search index to books is incredibly useful; it will help students and scholars find the best sources of information that are shrouded in obscurity.

16. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Final Thoughts The goal of a relatively comprehensive index cannot be achieved in a different manner. Copyright searches and clearances are very expensive and time consuming. An opt-in system, rather than an opt-out system, would include a small fraction of the books Google proposes to include. Harm to any author or owner is completely speculative. There is no real market for indexing rights. Authors can opt-in to Google’s partner program, and derive some revenue.

17. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Thank you for your attention!