It sounds like science fiction, but Google is now working to make it a reality. The Google Print project aims to scan digitally and index every book ever written, creating a search engine for books just as powerful as its industry‐leading search engine for the web.
Unfortunately, the biggest obstacle Google faces isn’t technological, but legal. Publishers are accusing Google of copyright infringement, and they’re demanding that the company get individual permission from each publisher before it scans their books. So far, Google has resisted the demands, insisting that building such a search engine is a legal fair use under copyright law.
There’s a strong case for that position, and given the tremendous benefit Google Print would bring to library users everywhere, Google should stick to its guns. The rest of us should demand that publishers not stand in the way.
People often assume that the law gives copyright holders unlimited control over their creative works. But a minute’s reflection shows that that’s not the case. Book reviews routinely include excerpts, computer users make backup copies of legally purchased software, and people record television shows for later viewing. The courts have upheld the right to make such copies without the permission of the copyright holder under the doctrine of fair use.
Courts have recognized the fair use doctrine for centuries, but Congress formally codified the principle in the 1976 Copyright Act. It spells out the factors that determine when an unauthorized copy is a fair use. According to the Supreme Court, the most important factor is “the purpose and character of the use.” It asks (as the court wrote in 1994) whether a new work “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.”
In 2003, for example, the courts allowed an Internet search engine to display thumbnails of copyrighted images because the purpose of the thumbnails — allowing users to quickly find the images they were searching for — was very different from the purpose of the original images.
Viewed in that light, Google Print is clearly a transformative use. It has a “further purpose” and “different character” than the books it indexes. Its value is not derived from the creativity of book authors, but from the innovation of its engineers.
Another factor the courts must consider is “the effect of the use upon the potential market for or value of the copyrighted work.” It seems clear that Google Print’s impact on the book market can only be positive for authors and publishers. Google Print only shows brief excerpts of books that are still under copyright. A user will have to obtain a printed copy of the book if she wishes to read more. That can only increase book sales.
The Constitution states that the purpose of copyright is to “promote the progress of science and the useful arts.” In other words, intellectual property increases public access to creative works by giving authors the incentive to produce them. Given Google Print’s tremendous potential to help readers find the books they want to read, it would be perverse to invoke copyright law to strangle the service in its cradle.