There’s no question that Google’s massive book digitization project has enormous social benefits. Researchers and students are able to find and analyze relevant information more quickly than ever before, authors and publishers can obtain new audiences for overlooked or forgotten works, and the public has gained unprecedented access to a vast repository of the world’s knowledge. But it would be disingenuous to extoll the virtues of the project while forgetting that Google didn’t ask for permission to copy the books needed to achieve any of this.
Of course, under the district court’s holding, it didn’t need to. By upholding Google’s fair use defense, the court immunized and excused unpermitted copying on a massive scale. And while the court focused on the fact that Google’s book search results display only “snippets” of the works, this required Google to scan the entirety of each book.
Some people have noted that there isn’t much of a difference between what Google did and the indexing and search functions employed by large search engines (i.e., Google). And put in this light, it seems reasonable. But I suspect that the reaction wouldn’t have been quite the same had Google, instead of scanning books, decided to rip and store full copies of every motion picture, television show and record album ever made into one massive library. Users would be able to immediately call up a precise song snippet, movie quote, or TV scene with a few keystrokes. Under the district court’s reasoning, all of this copying, distribution and display would be perfectly legal. And yet, my guess is that organizations like the MPAA and RIAA would be up in arms, and would liken the new service to a more insidious version of YouTube, with the content being provided by Google itself instead of uploaded by users. Unlike the services provided by YouTube, when Google provides content itself (e.g., with Google Books) it cannot claim the safe harbor provisions of the Digital Millennium Copyright Act as a “service provider.” Instead, it must rely on fair use.
While the fair use defense may have worked for Google Books query whether it would have the same outcome for services Google might call “Google Music” or “Google Movies.” After all, we have seen recent examples of courts treating First Amendment principles like fair use differently in different mediums (at least according to the dissenting judges in those cases). This medium-specific differentiation could just as easily wiggle its way into the fair use realm given the muscle of organizations like the MPAA and RIAA.
I’m a big fan of technology and innovation, but we shouldn’t forget that digital is digital, and if we’re talking about search engines, out of print books, and orphaned works, this means we’re also talking about high definition movies and the latest-season TV episodes. Just something to think about as we continue to work on striking the right balance between social utility and corporate profit.