WSJ: Google and the Copyright Wars
On Monday, a federal court in Manhattan granted yet another extension to Google and a group of authors and publishers as they try to reach a settlement in the landmark digital books case. They are expected to submit a revised proposal today. But whatever the ultimate agreement, this case is a giant missed opportunity.
The class action suit, brought in 2005, challenged Google's unauthorized scanning of copyrighted works to create a vast searchable database of books. It raised a critical question: Are search engines allowed, under the legal doctrine of "fair use," to make and store full copies of texts to power their search functions, profit from this material, and at the same time demand that copyright holders opt out if they don't want to be google-able?
The answer has importance far beyond the book-scanning project—it involves the very legality of how search engines operate on the Internet. If search engines cannot make full copies of books and Web sites without permission from copyright holders, their own business model would be jeopardized. When leading publishers and authors sued Google for violations of copyright, it appeared that the first serious test case was at hand.
And yet, as the litigation proceeded, the question that prompted the lawsuit—whether search engines are fair users—fell away entirely. The settlement agreement doesn't even address fair use standards for the future. Instead, the focus is now on the competitive concerns of allowing one company to have such a dominant role in digital book publishing, specifically on the treatment of "orphan works" (texts whose authors cannot be found).
Search engine caching—the process through which automated crawlers travel across the Internet, sweep up the contents of Web sites, and index them into searchable databases—is so fundamental to how information is distributed today that it's too big for any one case. It's a policy question that Congress has to tackle to give copyright owners a fair share of the revenue that their content generates on the Web.
The "snippets" of text that appear on your screen after you've entered a term in a search engine are produced from a complete copy stored in a search engine's server. True, the search results are only a few lines of text. But copyright is not limited to "display" rights. It includes exclusive rights to "reproduction" as well. And that surely means the storing of the complete text.
The search engines argue that they do not have to pay rights holders because the full copies they index are for a purpose different from the original. In addition, they say that they help make Web sites more valuable by driving readers to them. Publishers certainly like the traffic. But since only a few search engines control the market, publishers have had little choice but to play by their rules.
Google has consistently compared itself to the neighborhood library. When it was sued by Agence France Presse for copyright violations in 2005—a case that also settled before any judge ruled on the fair use issue—Google described itself "as important to the web as a card catalog is to a library." A public library, Google said in Agence France Presse v. Google Inc., "would be of limited use without an index or some other means to organize and find particular volumes of interest."
The copyright code allows public libraries to copy texts as long as there is no "direct or indirect commercial advantage." But that does not describe what search engines do. They use the complete copies they take for free to sell the advertising that has made them enormously profitable. This has a direct impact on book publishers, and on the publishers of magazines and newspapers that are losing the advertising that once supported them. According to Ken Auletta's recently released book "Googled," its search business alone now takes in 40% of all advertising across the Internet.
Consistent with the handling of copying by libraries, indexing without any commercial gain should be protected as fair use. But it should not be controversial to legislate that once the cache is monetized for the benefit of the search engine, the line of copyright infringement is crossed. The absence of such defined rules gave Google a green light to proceed with its book scanning project and establish itself as the proprietor of the world's largest digital bookstore.
In the last year, many fresh ideas have begun to circulate on how to help the publishing industry transition profitably to the online world. But without legal reform to back up these new business models, publishers will not have the bargaining power to make the search engines into true partners willing to compensate them meaningfully for their copyrights.
Messrs. Sanford and Brown are partners at Baker Hostetler in Washington, D.C. Their firm is not involved in the Google books case.