19 September 2005

Speaking of Common Enemies…

Professor Goldman muses on Google Print:

If Google restricted itself just to works in the public domain, then there would be no copyright problem; but Google has much more ambitious plans to get every book it can find, copyright protected or not. To "allay" publisher concerns, Google has made a public offer to publishers that they can opt-out of Google Print—instead of limiting themselves to publishers who opt-in or otherwise going through the cumbersome steps of getting publisher permission. Needless to say, publishers have not been thrilled by the offer that they can "opt-out" when they are still wondering what permits Google to launch this program at all.

This is well-considered, as far as it goes. There is a lurking question underneath, though. Professor Goldman's concern is well-stated for works made for hire. However, the vast majority of trade books—most particularly fictional works—are not works made for hire. They are instead controlled by contract… and do not, since the 1976 Copyright Act embraced divisibility of copyright, result in the publisher owning the copyright.

Professor Goldman's question implies that the publisher has the authority to grant permission for Googleprinting a particular book. In most instances, though, this is simply not true. Certainly books whose contracts do not include anything other than what used to be called "volume rights" can't be authorized by the publisher. Neither can extracts from collective works, such as anthologies of short fiction (hint, hint), as at most the publisher might have a compilation copyright subordinate to the copyrights in the component works.

Instead, this is being driven by convenience. Not only is Google wrong in adopting an opt-out model when the Copyright Act explicitly requires opt-in (cf. 17 U.S.C. § 204(a)), it is wrong in assuming that the publisher has the authority to grant permission in the first place. Google—and Amazon (remember Search Inside the Book?)—would rather not deal with a large universe of authors.1 It would rather deal with a limited universe of publishers. The last time I checked, though, "administrative convenience" was not one of the four fair-use factors set out in 17 U.S.C. § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

So, in the end, I applaud Professor Goldman for letting his head rule his heart. He does not go far enough—but that's a quibble—because a solution implied in his post is for Google to change from opt-out by publishers to opt-in by publishers—and that isn't nearly far enough, especially after Rosetta Books.

  1. Ironically, if Google (et al.) did choose to do so, that would go a long way toward solving the "orphan problem" for textual works. That's why Google had a representative at the Copyright Office's Orphan Works hearings.