Copyright lawsuit challenges Google's vision of digital 'library'

Authors and publishers balk at the firm's ambitious plan to digitize world's information, saying it needs their permission.

Book publisher Lisa Grant recently got an e-mail from Google Inc. - the $90 billion Internet search engine.

"Hello, Lisa, we understand that you have some concerns about your books being potentially included in the Library Project," it said, referring to Google's well-known bid to digitize the book collections of major libraries, including those at the University of Michigan, Harvard, Stanford, and Oxford. The idea: scan all or portions of those collections to make the texts searchable on the Internet for users around the world.

"As you already aware," said the notice, explaining a step-by-step procedure, "you can easily exclude books from the Google Library Project."

The interchange goes to the heart of a lawsuit filed in federal court in New York last week against Google and its Google Print Project. Brought by the 8,000- member Authors Guild, the suit seeks damages and an injunction to halt Google's project, claiming it violates copyright because authors have not first given permission to use their works.

Google, for its part, says the project benefits authors and publishers by raising awareness of their books - and including links to places to buy them. Users can see only small portions of copyrighted books - much like the distilled information about a book contained on a library file card, the company says. Such minimal use complies with so-called "fair use" laws, it says.

How such laws apply in the online realm is a topic courts are already weighing, as in recent cases regarding Napster, the Internet file-sharing system. It's at the root of this latest case, too, which may take years to resolve, possibly ending in the US Supreme Court, say legal scholars.

"We are talking a life span of years before we get an ultimate decision about this," says Larry Waks, an intellectual property attorney with Jackson Walker LLP in Austin, Texas.

Google has temporarily scaled back its project, ostensibly to give publishers like Ms. Grant time to decide whether to decline to let their copyrighted books be included in the project. But the company is moving ahead Nov. 1 no matter what, says spokesman Nathan Tyler.

Historian Herbert Mitgang and Daniel Hoffman, a former US poet laureate, are co-plaintiffs, but the class-action suit has support from thousands of writers and publishers like Grant.

"Copyright law says they have to get my permission, not that I have to go out of my way to opt out," says Grant, who is based in Rhode Island. "Google must be stopped. If they are allowed to get away with this, it would be horrendous for every author and publisher."

Fair-use laws leave much room for interpretation, say lawyers who specialize in intellectual property. Among issues considered are whether the "use" is commercial or for nonprofit educational reasons, how much of the work is used as a sample compared with its volume as a whole, and how the sample portion affects the potential market for or value of the work.

"This is a pretty good test case for looking at how the law tries to balance all these factors," says Bruce Sostek, a copyright attorney with Thompson & Knight, a Texas law firm. "I don't think they've come up with something that is clearly right or wrong. The court will struggle with the motivations of Google, as well as with other legal precedents."

Allowing Google to digitize copyrighted books - even if its intentions are good and even if it complies with fair-use laws allowing it to use excerpts - sets a dangerous precedent, others say.

"This is a project that is being done because they have the resources to do it and [because] people have gone overboard in their [eagerness] to digitize everything," says Michael Gorman, president of the American Library Association. The technology would be better used digitizing archives and collections of historic manuscripts and other unique documents that are now available to only a few, he says. He also worries that technology has a way of circumventing its intended purpose, despite best intentions.

"The history of electronic technology has been that once a new capability emerges, someone finds ways to go around ... protections - in this case potentially avoiding payment to authors. I can't believe that, if [Google] were to go ahead with this, that someone, somewhere wouldn't find a way to illegally exploit it."

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