Google and Its Global Archive: Infringing and Making Private Information Public

Although Clancco published this article back in May of 2007, Google’s digital library is a pertinent ongoing issue, as is highlighted in this week’s New Yorker’s article, Future Reading. In his essay, Anthony Grafton details the pros and cons to such amalgamation of information; the overwhelming influence of Western texts on “non-Western” countries; and the inability of digital files to hold the intricacies of reader notations and ruminations.

From May 5, 2007:

Google Inc. has entered in agreement with four states—Arizona, California, Utah, and Virginia—to allow Google search engines to access thousands of public records dealing with education, real estate, health care and the environment.

This access will now make available to anyone with an internet connection access to public records which were previously inaccessible or unavailable. Google is making this possible by providing free consulting and software to these state governments. The problem with this is that the privacy of private individuals who now reside, or have resided, in these four states is now available to a global audience.

Google is now attempting to persuade the federal government to follow suit.

Connected to this story is the ongoing litigation by McGraw-Hill Companies and The Author’s Guild against Google for its Google Book Search Project (Project).

In this Project, Google has agreed with 12 institutions to physically photocopy and digitize the collections of prominent libraries and institutions in order to create a vast searchable database of literary works, archived television programs, educational videos, personal production and other video media. With the exception of copyright owners of written works, all others must consensually submit their creative products (assets) for inclusion in Google’s Project. Nevertheless, this raises the question as to whether visual documentation of visual and performing artists will also be made available via a Google search.

The twelve agreeing institutions are Stanford University, University of Michigan, the collections of Harvard University, Oxford and the universities of California, Virginia, Texas-Austin and Wisconsin-Madison are also being scanned. The New York Public Library, the University Complutense of Madrid and the National Library of Catalonia are also participating. As of this year (2007), Princeton University has also agreed to participate but will provide books which are no longer under copyright. In exchange, Google will provide these institutions with a free digital copy of the donor institution’s collection.

Legal experts and scholars believe that this Project and its current litigation will raise fresh legal issues, or in legalese, issues of first impression as they pertain to new technology and the “fair use” defense under current U.S. Copyright Law.

Primarily, the two issues raised are whether or not Google’s Project is prima facie copyright infringement, and if so, whether or not they are allowed to do so under current, and foggy and re-interpreted “fair use” doctrine.

A bit on “fair use.” Fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; (4) and the effect of the use upon the potential market for or value of the copyrighted work.

Google argues that it is not infringement because it allows writers and publishers an “opt-out” option if, and only if, the writer/publisher decide, and to their burden, that they do not abide by and consent to Googles infringement. This is like saying that local authorities will enter private homes at will and will only cease if, and only if, the private home owner notifies local authorities that it does not consent to this entry. Keep in mind that this notification of non-consent will have been give after-the-fact.

If the U.S. Courts find that this is infringement, Google contends that it is allowed to do so under the current “fair-use” doctine. In this regard, Google maintains that it’s approach to scanning copyrighted books is fair use because it will allow readers (online searchers) only a snippet of the full copyrighted work. Google relies on two previous pro-fair use cases in the U.S.: Kelly v. Arriba-Soft Corp and Sony Corporation of America v. Universal City Studios.

In Kelly, the Court found that an online search engine which provided “thumbnails” of previously submitted full-size images was fair use. This was fair so long as the search engine, Arriba-Soft, did not provide access to the full image. In Sony, the Court found that Sony’s Betamax video recorder/player, although facilitating copyright infringement by allowing home-owners to video-tape television programs (infringement) and watch them at a later moment in time, was fair use, primarily because this new technology allowed for a bigger benefit of its use while providing a lower liability as to its infringement. These two cases serve as wonderful reminders that legal fiction is alive and well, or, as the Court prefers, it’s reliance on other factors beside the four fair-use factors listed above.

Google argues that its new technology is somewhat parallel to that of Sony’s, and that in a sense all it is doing is allowing for an archival system that will allow authors/publishers the ability to profit from the finding of obscure books while providing readers/searchers with an archival system which is easily searched. This is what Sony argued, that although it was facilitating copyright infringement of movies and films, the benefits of at-home viewing and luxury greatly succeeded those of infringement.

Although Google’s argument is persuasive, it is easy to see two main distinctions: One, in Sony, it was historically (and previously) factually and practically impossible for a home viewer to obtain private and time-selected viewing of Hollywood movies, foreign films and documentaries. It is currently not impossible for a home reader to borrow or buy a previously published and copyrighted book at her/his leisure. A similar analogy would have Google archiving movies and films and making “snippets” available for home consumption. This procedure to view movies and films within one’s private space is now possible, thus negating the new technology argument. In comparison, Sony Corp did provide a mechanism which not only benefited home-viewers, but movie studios and investors as well (home sales of VHS and DVD’s).

Two, what Google does not acknowledge is that if it is allowed to create a “benevolent” and “neutral” searchable data-base, this procedure can be recreated by any blogger and/or web-site owner with her/his own searchable system and archive. What is to keep CLANCCO from copying images and written works and make them available to its readers via its own searchable database?

CLANCCO will attempt to make any developments readily available to its audience, and welcomes any comments and thoughts you may have as to this issue.

–SMS