Why do Google Print’s critics, such as the University of Houston’s Raymond Nimmer, have so much trouble being accurate when they’re describing Google Print?
Google argues that a commercial company, for its own commercial purposes, can copy and distribute the property of another person without the property owner’s permission simply because if (Google) believes that its commercial interests will benefit.
Google Print doesn’t distribute copyrighted books, aside from displaying small snippets that are generally agreed to be fair use. The important question raised by the case, which hasn’t been decisively answered before, is whether it’s a violation of copyright to copy but not distribute a copyrighted work.
The rest of his post keeps reiterating the same misconception: that Google Print is distributing copies of copyrighted books. I’ll put the detailed fisking below the fold for those of you who don’t want to read me debunk the same bogus claim over and over again.
His dismissal of the Arriba Soft analogy is similarly sloppy:
The company argues that its commercial use is lawful under decision in Arriba Soft, a Ninth Circuit Court of Appeals decision relating to a visual search engine that briefly copied online photos, transformed them into thumbnail images, and used those images to provide links in its online search system to the posted images. The court held that the “intermediate copies” that were briefly made to create the thumbnails and the thumbnails themselves were fair use. It did not generally validate or authorize making digital copies for commercial purposes. It did not suggest that a company could continue to use exact digital copies of another person’s property with impunity.
Google isn’t claiming the right to “generally” make digital copies, nor is it claiming the right to do so “with impunity.” Like Arriba Soft, Google Print is making only those copies that are necessary to make a “transformative” use of the copyrighted content.
The snippets in Google Print serve essentially the same function as the thumbnails in Arriba Soft’s search engine. The snippets, like the thumbnails, are far too small a fraction of the overall work to be a good substitute for the product from which they are taken. Therefore, displaying them is likely to qualify as fair use.
As for the digital copies, it’s true that Arriba Soft’s copies were transitory while Google Print’s are permanent. But it’s not clear why that matters. Functionally, Google Print and Arriba Soft are identical. The only difference is an implementation detail: one program requires the whole copy to be kept whiel the other one allows it to be discarded. But since the functionality provided is so similar, and because no human being will ever see the digital copy, why does that implementation detail matter?
Again he mistakenly asserts that Google plans to distribute copyrighted content, when in fact they distribute only small excerpts:
The defendant in Arriba Soft did not keep the original copies and continue to use them, but used only the highly modified, transformed thumbnail images, while Google plans to keep and make available copies of the original works.
Finally, there’s his policy argument:
The further question is whether, as a matter of policy, Google should have the right to do what it wants? I think not. On the one hand, this large company desires to make a massive number of copies of other persons’ property for its own profit. On the other hand, the authors and publishers that own the property rights have been given exclusive rights to copy or distribute copies of their works as part of a statutory scheme that intends to provide authors with incentive to create new works. The incentive lies in their ability to control how the work is distributed and, even, when or if it is distributed. This is exactly the right that Google plans to take away.
Google Print takes away publishers’ distribution rights in exactly the same way that the New York Times Book Review does so, by providing potential readers with information (including excerpts) that might make them purchase the book. There’s absolutely no reason to think that Google Print will diminish the demand for books. Upholding Google Print is good law, and it’s good public policy.