Google and the Law

For a thoughtful legal discussion of the Author's Guild's lawsuit against Google, check out the Conglomerate Blog where you'll find a nice antidote to the open-source/everything is fair use/"the Author's Guild has to get with the time/creative-commons marauders.  That being said, the author things Google has to fight the case, and we at The Stalwart agree.  Scanning books and showing snippets looks like fair use to us:

For a variety of reasons, I hope that Google actually fights the lawsuit to an adjudication on the merits.  On the merits of the doctrinal question, I suspect that Bill and Eric are right, though I think that Google has some important arrows in its quiver, and I'd like to hear what an appeals court has to say.  And if it manages to win, Google may be planting the seeds of the destruction of copyright as we know it.  Depending on your point of view, that may not be a bad thing.

More below the fold . . . .

First:  Should Google fight the case?  Absolutely.  From a litigator's and trial lawyer's point of view, this is a case worth fighting.  There's lots of money at stake, and both sides have lots of money to spend on fees.  It's very high profile stuff!  And it doesn't (yet) have a clear storyline.  Right now, it's good guys ("do no evil") v. good guys (hard-working, creative "authors").  Moreover, it isn't very often when a fair use argument gets raised by a big-time, well-financed corporate entity.  Usually fair use is the province of the little guy, who has to rely on the legal kindness of strangers. Sometimes the little guy wins; usually the little guy loses.  That's not healthy for fair use.  One of the partners at my old firm used to say that sometimes, you have to fight the close ones.  Otherwise, you never win the close ones.

Second: I'd love to see some push back against the premise that Google has misbehaved by going ahead with its plans.  Bill Patry calls it Google's " chutzpadik manner"; the Times repeats the Author's Guild mantra that Google "turned longstanding precedents in copyright law upside down, requiring owners to pre-emptively protect rights rather than requiring a user to gain approval for use of a copyrighted work." Where does the Copyright Act say that it's a game of Mother-May-I?  The Act says that if Google invades one or more of the exclusive rights of the copyright owner without permission, and without an acceptable defense, then Google suffers the penalties provided for in the Act. Fair use is a defense provided for in the Act.  Google may turn out to be wrong, but if Google turns out to be right, then it's Erich Segal time:  Fair use means never having to say you're sorry.  This is what courts are for.  It seems to me that the Authors Guild, not Google, is being a little presumptive here.

 

Though here's something interesting from a commenter:

Good post, Mike. However, I disagree strongly with your core premise. I think the risks to Google of seeing this litigation to conclusion are potentially business-altering. It's possible that a court, when presented with the differences between the robotic collection of digital content and the scanning of dead trees content, will not be able to articulate any difference at all. At that point, Google could be faced with not only shutting down its Google Print project, but potentially having a court opining that its core search business is infringing. This is why I think Google should go to an opt-in system and then show the publishers who don't opt-in what they are missing. Eric.

And on a related note, anti-Google sentiment is bound to start brewing in the face of stuff like this from Corante's Dana Blankehorn's piece "Google Flattens the World":

But to say Google is going after Microsoft, the way we said Microsoft was going after IBM, is really to damn with faint praise.

If that were all there were to it, why would Google be planning on building out WiFi, or build out an optical network?

Google isn’t aiming at Microsoft, or at IBM. It’s aiming at the entire computing-telecommunications complex, building out what I’ll call the Google TeleComputing Environment.

Ok, tech-pundits, time to take a step back, take a deep breath and look at your firefox browser.  See that little box in the upper left-hand corner?  That's Google; there's your $80 Billion bucks.  One key difference between Google and Microsoft is the moat.  Switching search engines is a piece of cake.  Switching operating systems?  Not so much.