Whether Google is acting more like a book reviewer or like a movie producer in its use of other people's books may turn out to be a key question in the legal battle to come. Google, which did not make a company attorney available to Salon, has insisted that, as with book reviewers, copying books falls within the "fair use" exception of American copyright law. Google essentially argues that because it is copying books as a step toward a larger goal -- the creation of a search engine of library books -- its actions are permitted. After all, the company points out, it does exactly the same thing with Web pages. To create a searchable index, the Google Web search engine copies entire Web sites -- all of Salon, for instance, resides in Google's servers -- without their permission. If copying a Web site is OK, why is copying a book not?

In his Wall Street Journal editorial, Google CEO Schmidt defended the company's legal interpretation. "The aim of the Copyright Act is to protect and enhance the value of creative works in order to encourage more of them -- in this case, to ensure that authors write and publishers publish," he wrote. "We find it difficult to believe that authors will stop writing books because Google Print makes them easier to find, or that publishers will stop selling books because Google Print might increase their sales."

Fred von Lohmann of the EFF agrees with Google's view of the law, and he says that several federal court rulings uphold what Google is doing. Courts have already ruled, for instance, that it's OK for companies to make copies of video games as part of their efforts to reverse-engineer those video games; because the copied video games weren't meant to be sold, and were instead used for some other purpose (the creation of a reverse-engineered product), the copies were considered fair use. Then there's Kelly v. Arriba Soft, a 2002 case in which a judge ruled that it was legal for a search engine company to copy photographs from other sites online and display "thumbnails" of those photos as part of its search results. The thumbnails, the court said, were quite different from the original photographs -- they were smaller and of lower resolution -- and were unlikely to be used for the same purposes as the originals.

A similar argument can be made on behalf of Google's book search engine, von Lohmann points out. Google is not giving readers the exact copy of the books it scans from the library; rather, it's just giving them a snippet in the same way that a graphical search engine may show users a thumbnail image of a picture.

But if there are cases that support Google's view of copyright law, there are also federal court cases that line up against it. The main case involves MP3.com, a boom-time Internet company that copied tens of thousands of CDs to its internal database without getting record labels' permission to do so. (MP3.com planned to make digital tracks of songs available to anyone who could prove they'd purchased a physical CD of the music.) In 2000, a federal judge in New York ruled that MP3.com's copying of CDs without permission infringed upon the record labels' copyrights. A reasonable judge may look at Google's actions as being essentially no different; just as MP3.com copied CDs without asking, so too is Google copying books.

Both authors and publishers sued Google in the Southern District of New York, where the MP3 case is still an important legal precedent; the choice of locale, says Vaidhyanathan, was not an accident. "They picked the court that is likely to rule along the lines of the MP3.com case, and less likely to think that Kelly v. Arriba Soft was a good decision," he says.

Aiken of the Authors Guild, for one, is sanguine about his lawsuit's prospects. "I don't think if you were to survey copyright lawyers you'd find their view prevailing," he says of Google. "Our case is very, very strong. It would shock the copyright bar if it was decided against us." Still, both Aiken and Schroeder say are were open to settlement discussions with Google. "There's a lawsuit," says Aiken, "but if they wanted to negotiate a license we could work something out."

Google has not yet filed a legal response in either case, and it's unclear whether the company is open to a settlement. But several observers say Google may also be inclined to think about sitting down with the authors and publishers and talking about the case, including discussing a possible permission-based system for getting books into its library. For one thing, Google wouldn't want to risk losing in this case, says Vaidhyanathan, as a badly worded ruling in this case could put its other operations in legal jeopardy.

O'Reilly says that he was recently at an event sitting between Larry Page, one of Google's co-founders, and John Sargent, who sits on the board of the AAP. "I'm not going to tell you what they said," O'Reilly says, "but I think it's fair to characterize what they're doing now as negotiating by lawsuit and press release." Each side is hoping for some early legal decisions to go its way, O'Reilly says, and then the real settlement talks will begin.

But whatever happens with Google's venture, a more lasting outcome from this case may be a change in the way we think about how much control an author or publisher, musician or record label, filmmaker or studio, is allowed to exert over works they create -- a question that has been cast into stark relief in the digital age.

Lawrence Lessig, a Stanford law professor and copyright scholar, likes to tell the story of Thomas Lee and Tinie Causby, two North Carolina farmers, who in 1945 cast themselves at the center of a case that would redefine how society thought of physical property rights. The immediate cause of the Causbys' discomfort was the airplane; military aircraft would fly low over their land, terrifying their chickens, who flew to their death into the walls of the barn. As the Causbys saw it, the military aircraft were trespassing on their land. They claimed that American law held that property rights reached "an indefinite extent, upwards"; that is, they owned the land from the ground to the heavens. If the government wanted to fly planes over the Causbys' land, it needed the Causby's permission, they insisted.

The case, in time, came to the Supreme Court, where Justice William O. Douglas, writing for the Court, was not kind to the Causbys' ancient interpretation of the law. Their doctrine, he said, "has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim."

Google supporters say the publishers' objection rings similar to that of the Causbys'. Just as the airplane rendered the Causbys' rights to the skies incompatible with the modern world, the Web has rendered publishers' right to the digital universe out of tune with modern technology and society. The public benefit of making millions of books, or excerpts of books, readily available to people worldwide "could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries," Lessig wrote recently on his blog. "It is an astonishing opportunity to revive our cultural past, and make it accessible. Sure, Google will profit from it. Good for them. But if the law requires Google (or anyone else) to ask permission before they make knowledge available like this, then Google Print can't exist." And if Google Print can't exist, maybe it's time to reexamine the law.

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