indylibrarian.net

Reading this news release from the EFF about the EFF’s amicus brief they submitted in support of Google Image Search in Perfect10 v. Google they say the following.

“Google Image Search helps millions of people locate and learn about information on the web every day,” said Jason Schultz, EFF staff attorney. “We’re concerned that the public will lose out if Perfect 10 succeeds in shutting it down.”

Perfect 10 argues that a preliminary injunction is justified because Google is violating its right to reproduce, distribute, and display its copyrighted work. But there is a long tradition in fair use that certain kinds of copies are socially useful, even without permission of the author. Courts have held that copies are a legal intermediate step to making non-infringing uses of the copyrighted work—for example in teaching, education, and news reporting.

I have to agree with the EFF on this particular case due to nature of the material being copied not only based on the difficulty of conveying information about visual objects in a none visual way. However this release emphasized one fact that the EFF has used in other arguments for Google.

Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information—much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.
Emphasis added.

This argument of an electronic card catalog, in this case for images, is also used by the EFF in it’s
EFF’s position on Google Print Library Project.

The Electronic Frontier Foundation (EFF) applauds Google’s effort to create the digital equivalent of a library card catalog, and believes the company has a strong case.

“Just as libraries don’t need to pay publishers when they create a card catalog, neither should Google or other search engines be required to when they create an improved digital equivalent,” said EFF Senior Staff Attorney Fred von Lohmann.

This is also the argument used by Google itself in a presentation to The Chronicle of Higher Education.

<snip>
They compared the vast, full-text index of millions of books that Google is building to a library card catalog — a finding tool to locate the right book rather than a library of its own. “It’s a more powerful version of the card catalog,” said Mr. Gerber.
<snip>
Mr. Gerber said that those search results will mainly serve as a card-catalog entry, except that users can be sure that their search term is in fact included in the book. And, he noted, libraries do not need to seek publishers’ permission to compile card catalogs.

The I have with the card catalog argument in favor of the GPLPs that there is to me a significant difference in the nature of the work being done during it’s operation with the nature of the work necessary for Google’s Image Search. While the nature of various protocols for the Internet require copying to occur for browsing and sharing of information to occur since a copy of the file viewed in the browser needs to be made to the local computer and theISP’s computers. Indeed fact that making local copies for files used on the Internet needs tooccur for search engine services or archiving the web the medium relies on the concept of opting-out of such indexing through the robots.txt protocol. To me if Perfect10 didn’t want it’s images to be indexed in the Google Image Search they should just have either placed the images on their site in directory that was excluded from indexing in their robots.txt file or excluded the indexing of the webpages upon which the images were linked too unindexed through the robots.txt file so that these items would not have been included in Google’s visual card catalog.

The problem I have with card catalog argument for the GPLP, which I’d be suprised if it hasn’t been expressed elsewhere, is that without Google doing this copying these works would not be in electronic format so they are creating electronic versions of these copyrighted materials that don’t already exist. So it’s not similar to Google’s existing operations for it’s various image, text, and other search engines. Additionally, while the card catalog is a decent analogy for the results of GPLP it’s a false one. Where libraries use card catalogs to provide ease of access for material it owns, and indeed the Library of Congress makes money of it’s original cataloging of various works this work is derivative and a representation of the original not a copy.

Additionally, libraries and other entities that have traditionally used card catalogs as well as entities and practices that are protected by the “fair-use” copyright clause the underlying basis of the practices covered by this clause are non-profit where Google is a profit-driven business. So it’s argument for it’s copying under the “fair-use” clause are weakened in my idea. I think that perhaps if the GPLP was done solely for usage by the libraries it was doing the copying at, this argument would hold water. But since Google’s motivation in this digitization project is to gain revenue through both contextual advertising based on the copied works and the Google Print business of print on demand it’s arguments that it’s just a big card catalog doesn’t hold for me.

The fact that Google’s involvement in the GPLP is driven by profit to me might lead to it’s loss in court concerning the various challenges by the Author’s Guild and other copyright owners especially in the context of decision by the Supreme Court in MGM vs. Grokkster where they upheld MGM’s challenge in part due to the fact that Grokkster’s business model relying on selling ads to it’s users so implicitly encouraged copyright infringement since the more traffic the higher revenue it would be able to get from selling ads. Google’s business model for GPLP seems equivalent. To me rather than, in my view incorrectly, argue the GPLP is legal under the “fair-use” copyright clause I would rather see Google say they would not keep any copies made for themselves and push for a revision of the copyright laws to something similar to what is put forth by Lawrence Lessig in his book, Free Culture.