Google's Legal Battles

The recent news that Viacom has sued Google puts two major legal battles in the hands of Google's legal department. Let's take a look at them:

Google Book Search Suit

Google is currently scanning millions of volumes at the major libraries of the world. The books they have scanned are being made available for search. They are scanning books with three legal statuses:

1. Public Domain Works
These books have no restrictions as to how they can be reproduced. In fact, many, including Microsoft, Yahoo, Project Gutenberg and the Internet Archive, are in the process of making public domain books available online.

2. Copyrighted and Out-of-Print Works
For these books which are no longer available and often do not have a readily findable copyright owner, Google is providing snippet search results. That is, you can see the term for which you searched and a few lines of context. The Authors Guild and publishers who are suing Google still object because they are afraid of the future. Oh, I mean, they object because Google is still copying the entire book even if they are only showing a fair use portion.

3. Copyrighted & In-Print Works
Google is displaying these works as either card catalogue entries or through snippet access.

The suit is most likely just a business negotiation which happens to take place in the court room (sad, I know), but what does the law say?

Google is copying massive amounts of copyrighted material. The scale of this project is like nothing in the history of mankind. However, for copyrighted works, they argue that they are only providing fair uses of the material. The case really rests on whether or not the court finds that the initial act of copying is transformative enough to constitute fair use itself.

Google will argue that because the copied material does not affect the marketability of the books until it is displayed, the initial copying satisfies that requirement of fair use. Secondly, the ability to search through millions of books and find information like never before adds a value that books previously did not have. Further, Google is experimenting with mapping the locations mentioned in a book and linking books together which further transforms it to a different product than just a plain old book.

It is worth mentioning that if the case does go to trial and Google loses, the entire web search business (and thus the utility of the Internet) would drastically decline. In order to provide Internet search, Google creates a copy of every web page (which are copyrighted) and then provides snippet access to those. While publishers might argue that it is different because Google links to the original works, using Google Book Search will show that they provide numerous links to purchase the physical book at different sites.

Viacom v. GooTube

The future of Internet video hinges on this case which, in my opinion, stands a better chance of going to court. Viacom, one of the major content production companies, has sued Google-owned YouTube for copyright infringement. This case is more dependent on statutory law than the previous which will rely on legal precedent.

The Digital Millennium Copyright Act provides Internet Service Providers a "safe harbor" where they cannot be sued are they to comply with a written request to remove a users copyright-infringing material. This section of the law was a compromise between the telcos, who recognized they could not monitor what their customers used the Internet for, and the content industry, who wanted an easy way to remove what they thought was infringing material.

In practice, this law has applied to both ISPs and websites which host user submitted material. For example, in February, Viacom sent YouTube 100,000 notices of infringing material which was subsequently removed by YouTube. Much of this material was Daily Show clips or South Park shorts. Although forward looking business people recognize the value of this exposure, Viacom apparently feels that it can do better without introducing people to their shows on the most popular video site in the world.

Viacom argues that YouTube has a duty to remove infringing material. According to them, because YouTube scans for and removes pornography they should be able to remove infringing material, too. In fact, it has been reported that Google was willing to remove infringing material for those who would agree to provide their material officially for the service.

However, the DMCA clearly places the burden on the copyright holder to police his works and provide notice of its infringement. Statutory law is in favor of YouTube.

Case law, on the other hand, might not be. The Grokster Supreme Court decision created a new test for technological innovation. Under the ruling which found Grokster liable, a technology and its provider may be liable if the technology "induces" copyright infringement. The prevalence of copyrighted works on YouTube would seem to suggest that consumers use the service for sharing copyrighted works, but bear in mind that YouTube has a strict terms of use, limits length to 10 minutes and readily complies with DMCA take-down notices. Lessig calls the Grokster test a monster and it will certainly rear its head in court.

In general, I am less worried about this case than the book case because of the implications. The Book Search case has the possibility of shutting down one of the greatest knowledge aggregations in history. The unification of centuries old information with digital technologies opens up astounding possibilities for future scholars. As for YouTube, even though Viacom may succeed and Google may have to pay $1 billion, it will survive and Internet video will continue as Viacom provides official versions elsewhere.

I'll be sure to update you on these cases as they develop both here and on my link blog.