6 ms·

But they aren't just indexing the book. They are copying it completely. Then using that copy to provide a commercial service to people that reinforces the Googl

But they aren't just indexing the book. They are copying it completely. Then using that copy to provide a commercial service to people that reinforces the Google brand. In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. However, if I go one step further, commercialising my collection of digitised books by providing them online to everyone in the world in a searchable format - but removing every few pages - that somehow makes the original copyright infringement legal?... Does Google Books provide a useful service? I think Yes. Do they infringe copyright to do it? I think Yes. How could they not infringe copyright? I suggest if they bought every book that they digitise, they would then have the right to index those books so that they could offer their fair use service to people. Optionally, publishing houses and authors could opt-in to the system by providing them with a free book or a waiver.

dragonwriter 11y ago
> In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. Its, on first glance, a violation of the copyright owner's exclusive rights to create copies, sure. Whether its actually infringement or not depends on whether it falls in one of the exceptions to the exclusive rights, such as fair use. Copying a library book and just to keep it for yourself does not seem likely to do that. > However, if I go one step further, commercialising my collection of digitised books by providing them online to everyone in the world in a searchable format - but removing every few pages - that somehow makes the original copyright infringement legal?... Quite possibly. Fair use is funny that way, because the boundaries are not crisply defined but anything that falls within it is an exception to the exclusive rights of copyright, transforming what would otherwise be infringement into non-infringement. > I suggest if they bought every book that they digitise, they would then have the right to index those books so that they could offer their fair use service to people. If the service is fair use, then whether they own physical copies or not is immaterial, since the users ownership of physical copies of the work is not one of the factors called to be considered in fair use analysis. You don't acquire a right to fair use of a copyrighted work by purchasing a copy of the work, everyone has an inherent right to fair use (which was a judicially identified limitation of Constitutional character before being enshrined in statute) inherently.
- thedanfilter 11y ago
  I'm not so much disagreeing with what you have said, as obviously the various courts this has already been through hold a similar position on the matter, however, I would like to emphasise two points: 1) Google continue to possess _copies_ of books that they do not own. Hence my suggesting they purchase the books (i.e. I don't think that partnerships with libraries is enough). To offer the service of Google Books they must retain these copies, i.e. to allow you to read individual pages of the books. 2) Fair use usually entails the production of another copyrighted work that includes as a very small portion the existing copyrighted material. For example, a quote in a book. However, there are some instances such as for criticism or satire that allow a far greater amount of the original material to be used. But my main point is that a new work is created that is now distributable and is complete in and of itself, i.e. it does not rely on the maintenance of any source materials for its continued existence, e.g., a paper, a book, a video, a movie, a poster, a painting, a program, etc. The copyrighted work that Google have created is entirely their own, i.e. the source code related to the Google Books service. The copyrighted material they are using is the data used by their system. I don't think it is right to argue that each time a person accesses Google Books that the transformation from data in the database to webpage output constitutes a fair use as the content output is largely just a subset of whichever book it is. There is no extra criticism, satire, or transformation added, as you can then read the output as you would a normal book, and the entire purpose is to read the book as the author originally wrote it (albeit with some pages missing).
  - dragonwriter 11y ago
    Actually, while the amount of the source work used is an express.fair use consideration, more.of the source work can way in favor of fair use or against fair use depending on the circumstances, and many things that involve whole works (e.g., time shifting) have expressly been held to be fair use. It is simply false to say that fair use is usually a very small portion.
- nkurz 11y ago
  > If the service is fair use, then whether they own physical > copies or not is immaterial, since the users ownership of > physical copies of the work is not one of the factors > called to be considered in fair use analysis. I've wondered this also. Can you point to case law for this? I've seen some seemingly authoritative sites[1] suggest that owning a legal copy is a mitigating factor under "Market Effect". Separately, I've seen some reference to opinions that say that the "Four Factors" are just a starting point, and that other factors (presumably including legal ownership) can also be considered. For example, here[2] Posner says "the four factors are a checklist of things to be considered rather than a formula for decision" and "the factors and purposes are not exhaustive". [1] https://www.lib.purdue.edu/uco/CopyrightBasics/fair_use.html https://www.lib.purdue.edu/uco/CopyrightBasics/fair_use.html [2] http://www.techlawjournal.com/courts2003/ty/20020530.asp http://www.techlawjournal.com/courts2003/ty/20020530.asp
criddell 11y ago
> But they aren't just indexing the book. They are copying it completely. Is that different than what they do with web pages? Here's their copy of this site: https://webcache.googleusercontent.com/search?q=cache:DjfN_3WYfIsJ:https://news.ycombinator.com/+&cd=1&hl=en&ct=clnk&gl=us https://webcache.googleusercontent.com/search?q=cache:DjfN_3...

dragonwriter 11y ago

> In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. Its, on first glance, a violation of the copyright owner's exclusive rights to create copies, sure. Whether its actually infringement or not depends on whether it falls in one of the exceptions to the exclusive rights, such as fair use. Copying a library book and just to keep it for yourself does not seem likely to do that. > However, if I go one step further, commercialising my collection of digitised books by providing them online to everyone in the world in a searchable format - but removing every few pages - that somehow makes the original copyright infringement legal?... Quite possibly. Fair use is funny that way, because the boundaries are not crisply defined but anything that falls within it is an exception to the exclusive rights of copyright, transforming what would otherwise be infringement into non-infringement. > I suggest if they bought every book that they digitise, they would then have the right to index those books so that they could offer their fair use service to people. If the service is fair use, then whether they own physical copies or not is immaterial, since the users ownership of physical copies of the work is not one of the factors called to be considered in fair use analysis. You don't acquire a right to fair use of a copyrighted work by purchasing a copy of the work, everyone has an inherent right to fair use (which was a judicially identified limitation of Constitutional character before being enshrined in statute) inherently.

thedanfilter 11y ago
I'm not so much disagreeing with what you have said, as obviously the various courts this has already been through hold a similar position on the matter, however, I would like to emphasise two points: 1) Google continue to possess _copies_ of books that they do not own. Hence my suggesting they purchase the books (i.e. I don't think that partnerships with libraries is enough). To offer the service of Google Books they must retain these copies, i.e. to allow you to read individual pages of the books. 2) Fair use usually entails the production of another copyrighted work that includes as a very small portion the existing copyrighted material. For example, a quote in a book. However, there are some instances such as for criticism or satire that allow a far greater amount of the original material to be used. But my main point is that a new work is created that is now distributable and is complete in and of itself, i.e. it does not rely on the maintenance of any source materials for its continued existence, e.g., a paper, a book, a video, a movie, a poster, a painting, a program, etc. The copyrighted work that Google have created is entirely their own, i.e. the source code related to the Google Books service. The copyrighted material they are using is the data used by their system. I don't think it is right to argue that each time a person accesses Google Books that the transformation from data in the database to webpage output constitutes a fair use as the content output is largely just a subset of whichever book it is. There is no extra criticism, satire, or transformation added, as you can then read the output as you would a normal book, and the entire purpose is to read the book as the author originally wrote it (albeit with some pages missing).
- dragonwriter 11y ago
  Actually, while the amount of the source work used is an express.fair use consideration, more.of the source work can way in favor of fair use or against fair use depending on the circumstances, and many things that involve whole works (e.g., time shifting) have expressly been held to be fair use. It is simply false to say that fair use is usually a very small portion.
nkurz 11y ago
> If the service is fair use, then whether they own physical > copies or not is immaterial, since the users ownership of > physical copies of the work is not one of the factors > called to be considered in fair use analysis. I've wondered this also. Can you point to case law for this? I've seen some seemingly authoritative sites[1] suggest that owning a legal copy is a mitigating factor under "Market Effect". Separately, I've seen some reference to opinions that say that the "Four Factors" are just a starting point, and that other factors (presumably including legal ownership) can also be considered. For example, here[2] Posner says "the four factors are a checklist of things to be considered rather than a formula for decision" and "the factors and purposes are not exhaustive". [1] https://www.lib.purdue.edu/uco/CopyrightBasics/fair_use.html https://www.lib.purdue.edu/uco/CopyrightBasics/fair_use.html [2] http://www.techlawjournal.com/courts2003/ty/20020530.asp http://www.techlawjournal.com/courts2003/ty/20020530.asp

criddell 11y ago

> But they aren't just indexing the book. They are copying it completely. Is that different than what they do with web pages? Here's their copy of this site: https://webcache.googleusercontent.com/search?q=cache:DjfN_3WYfIsJ:https://news.ycombinator.com/+&cd=1&hl=en&ct=clnk&gl=us https://webcache.googleusercontent.com/search?q=cache:DjfN_3...