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Monday, May 17, 2010

The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?

Kate M. Manuel
Legislative Attorney

In December 2004, Google announced its Library Project, which was to entail digitizing, indexing, and displaying "snippets" of print books in the collections of five major libraries, among other things. The Library Project was not limited to books in the public domain (e.g., books whose terms of copyright protection had expired), and Google did not seek the permission of copyright holders, in part, because it asserted that its proposed uses were fair uses. Many authors, publishers, and other rights holders disagreed. 

The arguments made by and on behalf of Google and the rights holders regarding the Google Library Project highlight several questions of first impression about infringing reproduction and fair use under copyright law. First, does an entity conducting a digitization and indexing project that is not authorized by the rights holders avoid committing copyright infringement by offering rights holders the opportunity to "opt out," or request removal or exclusion of their content? Is requiring rights holders to take steps to stop allegedly infringing digitization and indexing like requiring rights holders to use meta-tags to keep search engines from indexing online content? Or do rights holders employ sufficient measures to keep their books from being digitized and indexed online by publishing in print? Second, can unauthorized digitization, indexing, and display of "snippets" of print works constitute a fair use? Assuming unauthorized indexing and display of "snippets" are fair uses, can digitization claim to be a fair use on the grounds that apparently prima facie infringing activities that facilitate legitimate uses are fair uses? 

Several lawsuits that could help answer these questions, at least for purposes of U.S. law, have been filed. The Authors Guild and a group of five publishers filed separate suits in September and October 2005 that have been consolidated into a single class action suit in which the parties propose to settle. A revised version of the settlement agreement was proposed on November 13, 2009, and the U.S. District Court for the Southern District of New York held a final fairness hearing on it on February 18, 2010. Because the suit is a class action, the court must approve any settlement agreement, and opponents of the agreement have raised concerns in amicus briefs and other court filings about Google's potential monopolization of book searching, the treatment of orphan works, protection of searchers' privacy, the rights of foreign authors, and related issues. In part because persons holding rights in photographs, illustrations, and other pictorial works incorporated within the scanned books were excluded from the proposed settlement agreement, the court rejected a motion by pictorial rights holders to intervene in the Authors Guild suit on November 4, 2009. However, on April 7, 2010, the American Society of Media Photographers filed its own class action suit against Google, alleging that the Library Project infringes their members' copyrights by reproducing, distributing, and displaying their works without authorization.

Date of Report: May 5, 2010
Number of Pages: 19
Order Number: R40194
Price: $29.95

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