Author’s Guild v. Google

The Author’s Guild v. Google case is understandably being discussed by many people interested in copyright. I find all these opinions quite interesting. I know that Georgia Harper, UT System’s lawyer, believes that Google’s use is fair, as do most of the Copyfight crowd. I know Siva Vaidhyanathan isn’t so sure, and from what I gather he doesn’t think Google should be taking the action it’s taking because of the possible detrimental consequences to the public. C. Petite from Scrivener’s Error has been critical of the procedural aspects of the case, but also critical of many people’s reliance and interpretation of the famous Kelly v. Arribasoft decision in a recent post.

The third factor of a fair use analysis examines the amount and substantiality of a work used. In Kelly, the court figured that this factor counted neither for nor against the thumbnailing use. Scrivener’s Error, if I’m following the argument correctly (which is by no means guaranteed) believes that copying the complete work in this case would lead to the use not being fair, based partly on this factor. He asks the following question (paraphrasing from the evaluation in Kelly stating that copying of the whole work was necessary),

Is it necessary to copy the entirety of a textual work to “allow users to recognize the [work] and decide whether to pursue more information about the [work]”?

I think it’s a good question. Let me back up a bit, for my own sake. ^_^

Google is performing at least two activities that would ordinarily be the right of the copyright holder- copying the books and displaying excerpts of the books online. The means of displaying exerpts may be fair use (and I think it is, although reasonable people disagree). Is the entire copying of the books fair? I’d like to think so, but I’m not entirely sure. People I’ve talked to believe that the two actions- the copying of the entire work and the displaying of the work – are inseperable when analyzing fair use, which takes the purpose of the use into account. I can see that, particularly after reading Kelly, which distinguished the two but recognized the overall purpose in its fair use analysis. The author of Scrivener’s Error, I think, believes that a fair use analysis based on the above quote, if developed fully, would weigh against the copying of the entire work.

As Scrivener’s Error notes, what Google is doing and what Arriba did isn’t exactly the same. He takes that fact and asks some questions that I find fascinating in his first footnote, which he’ll get to later. I hope he does, because I asked similar questions in class but we didn’t get to really address them. ^_^; However, I also think that these differences make the rephrasing of that question above slightly off. The original statement in Kelly reads that “it was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site.” This highlights one of the differences- Arriba was looking at images, and Google is looking at text. Why is that important in this context? Because I don’t think that “recognizing” an image in a graphical index in order for a user to evaluate their potential interest in the image is the same as “recognizing” text in an index or keyword search function.

The post on Scrivener’s Error mentions that the quote above has been shortened into the idea of “indexing,” which professional index-preparers would deny (as well as the Second Circuit courts, but I’m not going to address that). I’m not so sure about that, but I don’t know if in terms of fair use arguments equating the above quote with indexing matters all that much. The indexers I’ve met- mainly acadmemic, admittedly- do tend to recognize search engines as near kin to what they do, although there are differences. In my experience, some traditional indexers tend to view search engines as inferior. Note that in the Indexing and Abstracting course once taught here, one of the goals of the course was to “appreciate the limitations of indexing and searching software.” Of course, we also have classes that teach data mining and search engine related technologies. I have no problem referring to the actions of a search engine as indexing. However, I don’t think that the fair use analyses I’ve looked at solely rely on the Appeals Court’s evaluation of the third factor when they refer to of indexing. In their analsysis of the first factor, the purpose of the use, the Court notes that the purpose of Arriba’s action was to “index and improve access to images on the [I]nternet and their related websites” and note the transformative nature of Arriba’s actions. I think Google has an even stronger first factor than Arriba- digitization of text offers a great deal more in the ability to index and search text then Arriba’s copying of already digital images. That’s a whole paper on itself at some time, though, so I’ll leave that alone for now. Anyway, if the purpose is “indexing,” given the differences between text and graphics I think the question should be a bit different.

I would rephrase, looking at the third factor. Is the digital copying of the complete work necessary for users to find information about the work and seek additional information about the work?

Also, though, in the overall fair use analysis of the case, two of the factors were for Arriba, one was neutral, and one was slightly in favor of Kelly. The neutral’s swinging towards the Kelly would have changed the overall analysis, but I don’t know by how much overall.

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