Twenty Key Questions for Author’s Guild v. Google

Here are twenty key questions to ask concerning the Author’s Guild lawsuit against Google:

1. What kind of copying of copyrighted works is permitted by a library?

2. Who is doing the copying of the University of Michigan Library collection as a matter of law – is it Google, or is it actually the Michigan Library, which is the owner of the library collection of works?

3. It is known that Google is providing the money and the technology for the copying, but this copying is authorized by a contract between the non-profit library and the for-profit Google. If it is the library that is doing the copying as a matter of law, can the library authorize a commercial company to do that copying for them without this being a violation of the copyright laws?

4. How many copies and what kind of copies can the library, or the commercial company hired by them, make?

5. Should the library be permitted to rely on both Sections 107 and 108 of the U.S. Copyright Law, or must they choose between them, or is Section 108 intended to be the exclusive copyright law exception for libraries?

6. Libraries rely on the fair use exception in Section 107 to make multiple reserve copies for classroom use. Are they actually allowed to do this by law?

7. Can Section 108 be read to limit libraries to the making of only ONE copy of any copyrighted work in their collection? for archival purposes only?

8. If a library is authorized by law to make one or more copies of a copyrighted work, can a digitized copy be made, or is the right of duplication limited to a physical copy, such as a photocopy? for archival purposes only?

9. If a digitized copy of a work is made for archival purposes, can this work be made available to users (non-profit or commercial) without paying a license to the copyright holder?

10. What about books that have already been published both in print and in digital form? Is the use of a copy of a digitized scan of such a printed book a per se copyright infringement given the author’s already previous publication of a digital form?

11. If a digitized copy of a print only work is made availabe by the library to a non-profit or commercial user and if this digitized copy as such is determined by the courts to be a copyright infringement of the published print copy, then who is the infringer, the library or the user?

12. If a non-profit library creates a digitization of its collection, and if this digitization is held by the courts not to be copyright infringement per se, is the library permitted by law to use this digitization for its own catalogue and access purposes? Would that be a transformative fair use?

13. How much of the digitization product could be made available to users? 100%?

14. Could the digitization be loaned (downloaded) by other non-profit libraries?

15. If a non-profit library creates a digitization of its library collection, and if this digitization is held by the courts not to be copyright infringement per se, is the library permitted by law to make this digitization available to commercial enterprises? and if so, under what conditions?

16. If the library can make this digitization available to commercial enterprises, then what copyright license fees, if any, accrue to copyright holders, and who is obligated in the first instance to pay them to the authors or publishers? Would this be the library or the user?

17. If the digitizations made by the library do not infringe copyright law simply by the fact that they have been created by the library, but not yet used, does the subsequent use of such digitizations in any form by search engines constitute a copyright infringement if copyright royalties are not paid for the use of such digitizations?

18. Would the use of such digitizations in the snippet form foreseen by Google for its search engine retrieval constitute a transformative use which thus qualifies as fair use under Section 107 of the Copyright Act?

19. Can Google claim an exclusive search engine right to digitized copyrighted material prepared by it for a library under a contract with that library? or would access have to be given to all search engines?

20. If offering snippet search of copyrighted works were to be found fair use under the copyright laws, what percentage of the total work could be shown to the user?

Obviously, there are more questions which could be raised. Our intent in posting the selected questions above is to illustrate that the case of Author’s Guild v. Google does not merely involve the simple question of whether the Google Print project as such violates the copyright laws. Rather, in adjudicating this lawsuit, the courts would have to pay very careful attention both to the rights of non-profit libraries to make copies of copyrighted works in their collections as well as to the use to which these copies could be or are subsequently put, whether commercially or otherwise. Especially necessary would be a legal treatment of digitized copies, which is an issue directly touching upon the copyright law attaching to digital works.

Depending upon how the courts interpret the Copyright Act, they could also decide that without an opt-in by copyright holders, some kind of general royalties would have to be paid to a copyright clearinghouse by libraries for the actual making of digitizations of copyrighted printed works, including the right to make databases of those digitizations for snippet search by search engines.

Nevertheless, contrary to the Author’s Guild suit, the onus is on the library and not on Google – at least, not yet on Google.

See regarding libraries and digitization:

Library Digitization Projects and Copyright by Mary Minow, J.D., A.M.L.S.
Digital Reference: Legal Issues by Mary Minow

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