Google: Search or Destroy?

Moyra McAllister Roger Clarke Matthew Rimmer Chris Creswell Michael Handler Sarah Waladan
16 December 2005

  • Matthew Rimmer, Senior Lecturer, ACIPA, Faculty of Law, The Australian National University
  • Moyra McAllister, Copyright Officer, Australian Library & Information Association
  • Michael Handler, Lecturer, ACIPA, Faculty of Law, The Australian National University
  • Roger Clarke, Visiting Professor, Faculty of Engineering & Information Technology, The Australian National University, and Xamax Consultancy
  • Chris Creswell, Consultant, Copyright Law Branch, Information Law & Human Rights Division, Attorney-General’s Department
  • Sarah Waladan, Executive Officer, Australian Digital Alliance, & Copyright Advisor, Australian Libraries Copyright Committee

Matthew Rimmer: “The Authors’ Guild would be better off exploring alternative policy mechanisms”

In Opening in England, Australian poet Les Murray declares: “Wage justice for poets, a living / like that of all who live off our words.”

Such heartfelt sentiments have recently been expressed in the context of litigation by the Authors’ Guild against Google Book Search.

In December 2004, the search engine Google announced that it had entered into agreements with four university libraries and the New York Public Library to “digitally scan books from their collections so that users worldwide can search them in Google.”

In September 2005, the Authors’ Guild filed a class action against Google alleging that the Google Book Search project had infringed copyright in literary works through its unauthorised scanning and copying of books. A month later, the Association of American Publishers filed a separate action for copyright infringement.

The President of the Authors’ Guild, Nick Taylor, observed: “The alphabet ought to be free, most certainly, but the people who painstakingly arrange it into books deserve to be paid for their work. This, at the core, is what copyright is all about. It's about a just return for work and the dignity that goes with it.”

Undeniably, creative artists have been poorly compensated for their endeavours. As Australian musician and politician, Peter Garrett notes: “The best that the majority of working contemporary artists can hope for is a paltry, uneven return for their creative effort.”

This article is the result of symposium entitled “Google: Infinite Library, Copyright Pirate, or Monopolist?”, held by the Australian National University’s Institute of Social Sciences and Law on 9th December 2005. To hear audio footage of this event, visit here

It is arguable that copyright law has proven to be a poor mechanism for providing a living wage for authors and other creative artists. The economic rights of authors have traditionally been assigned or licensed to publishers in return for the dissemination of literary work and, as a result, authors have been poorly compensated by publishers for the reproduction and dissemination of their work.

Furthermore, in the US there is no adequate protection of the moral rights of authors in relation to attribution and to the integrity of their work. By contrast, other jurisdictions, such as Australia, Canada, and the European Union provide better legal protection of the honour and reputation of creators.

The legal action by the Authors’ Guild against Google is by no means guaranteed to be a success. It will be difficult to establish that biographer Herbert Mitgang, children’s storyteller Betty Miles, and poet Daniel Hoffman form a representative class which would be harmed by the Google Book Search venture.

Furthermore, Google has a strong argument that its index is protected by the US defence of fair use, as it is a transformative activity and in no way a substitute for the purchase of books.

If it is really concerned to “wage justice for poets”, the Authors’ Guild would be better off exploring alternative policy mechanisms – such as industrial relations and taxation law – to protect the livelihoods of authors.

In Canada, the Government passed the Status of the Artist Act 1992 to recognise the contribution made by artists to various aspects of Canadian life. The legislation allows creative artists to engage in collective bargaining for industrial relations under the auspices of the Canadian Artists and Producers Professional Relations Tribunal. In the European Union, Luxembourg has implemented similar legislation.

Notably, the Republic of Ireland has sought to implement policies to help secure a living wage for authors. Most significantly, since 1969, the work of authors, creative artists and musicians living and working in Ireland are exempt from income tax on income derived from work of cultural merit.

Such policy options seem better tailored to achieve the wistful hopes of authors like Les Murray who yearn to “Wage justice for poets, a living / like that of all who live off our words.”

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Moyra McAllister: “Librarians as a profession are committed to the principles of equitable access to information”

Whatever librarians may think of Google Book Search there is no doubt that it has raised the profile of libraries in the press. The Wall Street Journal, New York Times, USA Today, The Economist, New Scientist and The Australian, are just some of the publications who have carried major articles on libraries discussing the impact of the project since it was announced.

This is not the first attempt at digitising the world’s literature. Before Google there was (and still is) Project Gutenberg, started by Michael Hart in 1971, which uses volunteers to digitise public domain material by a mixture of scanning and keying. Further, Carnegie Mellon University (with assistance from the National Science Foundation and with the cooperation of institutions in China and India) has also been digitising public domain and out-of-print, in-copyright material with the permission of the publishers.

Since Google announced its plans there has been a rush to digitise: the European Commission, concerned about the Anglo-centric nature of Google Book Search, has announced plans to commence digitising European material in 2006; the British Library is being funded by Microsoft to develop a National Digital Library. October this year saw the launch of the Open Content Alliance, a collaboration of cultural, technology, nonprofit, and governmental organisations including Yahoo!, the Internet Archive, O’Reilly publishers, the University of Toronto and the University of California.

The emergence of strong competition to the Google project has to a certain extent alleviated the concern that some librarians have felt, that Google would have a monopoly on the digital library.

While other projects will concentrate on public domain material or material for which they have obtained permission to copy, what sets Google apart from these projects is its plan to digitise material that is still in copyright (unless the copyright owner objects – a so-called “opt out model”). Librarians as a profession are committed to the principles of equitable access to information. The Australian Library and Information Association (ALIA) has as a core value, “the promotion of the free flow of information and ideas through open access to recorded knowledge, information and creative works”. But ALIA also supports a balance between the rights of copyright owners and copyright users. Because of this they probably favour the Open Content Alliance proposal, with its strong emphasis on copyright compliance.

Librarians have taken a principled stand in the past on the issue of privacy of library records. They are therefore concerned about the use that Google may make of search results and the possibility of tracing the use of keywords.

In addition there are the fears of librarians such as Michael Gorman, president of ALIA that providing “snippets” of books as the results of searches will lead to a dumbing-down of scholarship.

On the whole, however, the reaction of librarians seems to have been positive. They see the prospect of state-of-the-art technology being applied to projects that will extend their acquisitions budgets and provide wider access to their collections.

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Michael Handler: “Google is not, and never will be, a global repository of information”

While attention is currently being paid to the Google Book Search controversy, another copyright dispute involving Google also merits consideration. Agence France Presse (AFP) is currently suing Google in the District Court of the District of Columbia, claiming that the use of AFP’s headlines, lead sentences and photographs on the Google News website constitutes copyright infringement.

Google News is best described as an “online newsstand”. The site provides links to news articles from media organisations’ websites. These links sometimes take the form of headlines of those articles, or thumbnail photographs sourced from media websites.

AFP’s decision to sue seems counterintuitive, given that Google’s linking to sites carrying AFP content would surely increase their traffic. But does this mean that AFP’s legal challenge will fail?

The question is likely to turn on whether Google’s use of AFP’s copyright works can be characterised as “fair use”. This is a notoriously difficult issue to determine. The use of the headlines and lead sentences might well be considered fair use: Google’s use of them is merely for the purpose of organising and indexing news stories and the value of AFP’s articles is, if anything, increased by Google linking to them in this manner. However, Google’s use of AFP’s photographs is more problematic. It is arguable that Google uses photos merely to augment or illuminate news stories – this is similar to how the photos are being used on the media websites from which they originate, making a finding of fair use less likely.

The case thus affords the judiciary the opportunity to provide further guidance on the scope of fair use and, in particular, the relevance of public interest considerations in allowing parties to organise and promote access to educational, copyright material. Moreover, the dispute should provide a stark reminder to countries such as the UK, Canada and Australia (whose defences to infringement require the use to be for specific purposes, such as criticism or news reporting) of the dangers of having copyright laws that unduly restrict the flow of and access to information resources.

The legal challenge to Google News should also give us pause to query Google’s stated mission to “organise the world’s information and make it universally accessible”. Google responded to AFP’s lawsuit by removing AFP content from the Google News site. It has made similar decisions in response to other legal threats. This illustrates that Google’s choices as to the sites to which it links are not only mathematical, but also legal and political. It is thus incumbent on us to remind ourselves that, while highly useful, Google is not, and never will be, a global repository of information.

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Roger Clarke: “The web is being swamped by the contemporary dominance of corporate interests”

Google is not just a service. It's a corporation that provides many services, which are increasingly interlinked. The foundation was, and remains, the search engine. The company has developed a range of extensions to the basic service, many of which usefully restrict the scope of the search, for example to images only, or to items of academic interest, as with Google Scholar. The company has also branched into a wide range of additional lines of business, some by takeover, and some through internal development. Significant among them are GMail, Google Earth, Orkut and Google Desktop.

Google is structuring its business portfolio in order to achieve cross-leveraging. A form of cross-leveraging that is of special concern is the consolidation of information about the behaviour of users of multiple Google-provided services. Critics of Google's behaviour have made much of a statement by its CEO to financial analysts: “We are moving to a Google that knows more about you”.

At this stage in its development, Google has the following streams of data about its users available to it:

  • logs of:
    • the IP addresses from which search-engine users send requests;
    • the search terms that they send;
    • the ads that they click on;
    • the within-Google pages that they go to (e.g. Google-cache);
    • perhaps soon, the Google Book and Google Library content that they access;

  • the contents of a long-term cookie that appears to be associated with all Google Services, and appears to contain an identifier that would therefore enable all visits to any Google site to be correlated;

  • the vast Gmail archive, comprising:
    • all emails sent by Gmail subscribers;
    • all emails sent by all correspondents to Gmail subscribers;
    • all ads displayed as a result of text in inbound emails;
    • the social networks of subscribers and their correspondents;

  • within the Orkut social networking service:
    • self-nominated profiles of members;
    • profiles of other individuals captured by members;
    • the social networks of members and non-members.

There is no evidence that Google the corporation has yet moved to mine this data; this would in any case be a strategically unwise manoeuvre at this early stage. There are various protections nominated in the various privacy policies, none of which are anything like adequate, and all of which are malleable at the will of the company.

Email harbours threats to privacy, especially when reduced to a web service. Google's Gmail is a particularly untrustworthy provider. It refuses to explain the circumstances under which it releases its subscribers’ information, and the number of occasions on which it has done so. Moreover, Gmail's special features have considerably extended the list of risks. Its subscribers are subject to targeted ads based on text from senders. Google is in a strong position to correlate the ads with other data it holds, including, if and when it chooses to do so, with the content of the emails.

Importantly, these threats extend beyond Gmail subscribers to the individuals who send messages to Gmail subscribers. The text is examined, is retained long-term, and is subject to largely uncontrolled use and disclosure. The result has been that some people decline to correspond with people via Gmail addresses.

The early, socially-oriented era of the web is being swamped by the contemporary dominance of corporate interests. Coupled with the corruption of longstanding copyright law to advantage big business, the tensions between human and corporate interests on the internet are now very high, and will mostly be resolved against the interests of individuals. Google is a major player in this arena. Its claim that "You can make money without doing evil" is being put to the test, as its growth and diversification puts enormous temptations in front of its executives. They are clearly having a great deal of trouble resisting those temptations.

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Chris Creswell: “What Google proposes to do raises policy issues about the adequacy of existing exceptions to copyright”

According to reports, Google has scanned, or proposes to scan, complete copies of copyright works held in participating libraries onto a database. It proposes to give some of the libraries a copy of the database. Both these actions would be an exercise of the reproduction right of the owners of copyright in the works, for which their permission would be required unless it comes within an exception to copyright. Google is reported as claiming that what it is doing is “fair use” under US copyright law. Reportedly, Google is or will be doing the scanning in the USA. Debate rages amongst expert commentators whether Google’s claim will be upheld by US courts.

In support of Google, it is said that Google is providing a great public benefit by affording much easier access to major collections of the world’s literature, and that some of the authors of the works welcome this. Copyright law, which will ultimately decide whether Google has infringed copyright, represents a balance between rewarding authors for their creativity and affording reasonable public access to works. Exceptions to copyright that allow users access in specified circumstances are part of that balance. Authors – and other copyright owners – who want Google to use their works can licence Google, but this does not commit unwilling copyright owners. That includes owners of copyright in out-of-print works, which could in the future gain republication prospects through use of the work in film or television.

International obligations in the Berne copyright convention and the World Trade Organisation agreement on IP place a limit on the scope of exceptions to copyright (known as the “3-step test”). The USA and Australia are bound by those obligations and also by their bilateral Free Trade Agreement, which reinforces their commitment to those international copyright standards.

That said, some argue that what Google proposes to do raises policy issues about the adequacy of existing exceptions to copyright. There is mounting pressure to consider a new mechanism for allowing use of works of which the copyright owners cannot be identified or traced – so-called orphan works. The US Copyright Office is in the course of a review of the issue, and it has also been raised by a number of submissions to the Australian Government’s current review of “Fair use and other copyright exceptions”.

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Sarah Waladan: “Google has indicated its willingness to be seen as a ‘good corporate citizen’”

The expansion of Google via Google Book Search will transform the search engine to a more substantial and widely accessible resource providing links to a broad range of information including book references. This expansion has lead to claims that Google may potentially replace libraries, interfere with the markets of authors and publishers, and become an unscrupulous monopolist in the provision of information services. There are a number of reasons, however, why such fears are unfounded.

Google Book Search has the potential to assist, rather than compete with libraries. Whereas a library can enable users to view, access, read and borrow an entire work, whether in copyright or not, Google will only display a few sentences of text around the search term in a particular book, in order to guide users to the type of information that they may then want to either purchase or borrow from the library.

Additionally, the benefits of Google’s project will extend to information service providers as well as the general public. Publicly funded libraries often do not have sufficient resources to digitise the full extent of materials needed in order to preserve the world’s culture. Google’s project assists such preservation, albeit via a business model rather than a public entity.

The argument that Google is engaging in copyright piracy is inconsistent with US law and in particular with the fair use defence as it has been interpreted to date by the US legal system and in particular in the US case of Kelly v Arriba Soft.

This case essentially held that where the copying of entire works improves access to the internet and therefore benefits the public, as distinct from that of “artistic expression” which the copyright holder has the exclusive right to exploit, the copying is a fair use rather than a copyright infringement.

A finding against Google would undermine not only this decision, but indeed the current legal basis of search engines, which operate essentially by accessing websites, and copying them into the search engines’ database on a regular basis, creating an up-to-date “index” of other people’s works.

Finally, whilst Google’s patent over its new “super” scanning machine will enable it to be the first entrant into a new market of supplying an online index of the world’s books, there is nothing stopping competitors from also indexing works electronically or creating alternative forms of electronic text delivery.

So far, Google has indicated its willingness to be seen as a “good corporate citizen”. In any event, if Google’s activities develop in such a way that it effectively uses its market power to harm either consumers or its competitors, competition laws should provide an appropriate remedy to curb those activities.

Google Book Search offers many public benefits, and US law is flexible enough to embrace this technology. Let’s move forward.

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