COPYCENSE

I have been trolling the Web, looking to catch up on things I’ve missed over the last week or so. I found this statement on Aaron Swartz’s blog:

“Google won’t even scan any book copyright holders ask them not to, even though doing so is perfectly legal.”

(I don’t know Mr. Swartz, although a Google search suggests that many others do, or at least know of him.)

Mr. Swartz is upset that Google has discontinued its Google Print Library Project due to pressure from publishers who are concerned about the copyright implications inherent in the project. That is his opinion, and he is entitled to it. But to say that it is “perfectly legal” for Google to scan a book that remains under copyright is misleading at best, and skidding dangerously into just plain wrong.

The Google Print Library Project is predicated upon the most basic of copyright rights: the owner’s exclusive right of reproduction, as codified in Section 106(1). What Google is doing by scanning books is to make a digital reproduction of these works. That action implicates the reproduction right, and if Google cannot find a limitation on the publishers’ exclusive rights (which may be found somewhere in Sections 107 through 122), it is liable for copyright infringement under Section 501(a).

Granted, there are other considerations. One or more of the libraries involved in the project may be able to digitally reproduce some of their holdings pursuant to library limitations at Section 108, or perhaps even the fair use limitation codified at Section 107. Google itself could claim a fair use limitation under Section 107, but that requires analysis I don’t want to engage in right now (mostly because I’m holding it for another, more formal article). But I think Google’s fair use claim is shaky at best.

I agree with Mr. Swartz’s assessment that the publishers are barking up the wrong tree, but that has nothing to do with the fact that it’s “perfectly legal” for Google to go ahead with its digitization plan. Unfortunately, Mr. Swartz perpetuates a common misconception among technologists and information professionals about copyright and its importance to the business of information.

Google Weblog. Google Sells Out Users to Publishers. Aug. 12, 2005.

See also:

Google Blog. Making Books Easier to Find. Aug. 11, 2005.