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string(206) " that one can say that print is co-existing with digital technology and a time will come when digitization will marginalize print just like the keyboard and computer has marginalized the use of typewriter\." computer law security report 24 (2008) 253–260 available at www. sciencedirect. com www. We will write a custom essay sample on Google or any similar topic only for you Order Now compseconline. com/publications/prodclaw. htm Copyright, Google and the digitization of libraries Armageddon on the digital superhighway: Will Google’s e-library project weather the storm? Akhil Prasad, Aditi Agarwala Gujarat National Law University, India abstract This paper examines the concept of copyright as an intellectual property in the digital age and the utilitarian objective which an intellectual property seeks to achieve. In that respect ‘fair use’ as a concept of U. S. copyright law has been critically analysed. An ongoing Court battle involving the dispute between Google and the Author’s Guild Publishers has been examined and an attempt has been made to justify the act of Google under the fair use doctrine. At the heart of the work, one shall be able to appreciate the pressing need for the copyright laws to be rewritten for the digital age. Recourse has been made to numerous case law to appreciate the concept of fair use and this paper concludes by holding Google’s project of digitizing copyrighted books as ‘fair’ as it ful? ls the primary aim of copyright law which is ‘‘encouragement of learning’’ and ‘‘dissemination of knowledge’’. ? 2008 Akhil Prasad Aditi Agarwala. Published by Elsevier Ltd. All rights reserved. 1. Copyright – A stimulus to creativity Innovation and creativity are the tools to climb the progressive ladder of humanity. It is not only to b e encouraged by allowing the intellectual mind to reap the fruits of his labor through trade and commerce but also prevent his loss/detriment by prohibiting unauthorized and unscrupulous persons or entities to unjustly enrich their pockets. This can be done through sales on the sly or, enhancing their reputation or marketability of the work under their hand, by lifting the copyrighted material and incorporating/merging it in their own without the permission of the author, often minus any acknowledgement and with the intent to improve or increase the marketability. Copyright encourages the creative efforts of authors, artists, and others by securing the exclusive right to reproduce works and derive income from them. The copyright law embarked as a codi? ed body of law when the Statute of Anne received the assent of the British Parliament in 1710. The very nature and purpose of the statute was twofold: the ? rst to promote learning or dissemination of knowledge1 and the second, to prevent any other person, save the author, to print or reprint the literary work for a limited duration. The most important part in terms of relevancy to the subject matter of this article is perhaps the ? th clause of Anne’s statute which mandated that ‘nine’ copies of each book, shall be kept in nine libraries (one copy each), of the stated Universities therein for the purposes of accessibility and dissemination of knowledge to the public at large thus promoting literacy and thereby social good, and a stringent monetary penalty was attached, in case of noncompliance of the aforementioned clause. The statute also envisaged a formal system of price control and redress mechanism as well. Thus, it is observed that at the time when the foundation of the modern copyright law was being laid down, the legislative intent was to further or promote dissemination of knowledge but at the same time the private right of the author was being respected and protected. In essence, it 1 The Preamble to the Statute of Anne, 1710 is worded as ‘‘An Act for the Encouragement of Learning’’. 0267-3649/$ – see front matter ? 2008 Akhil Prasad Aditi Agarwala. Published by Elsevier Ltd. All rights reserved. doi:10. 1016/j. clsr. 2008. 01. 002 254 computer law security report 24 (2008) 253–260 as a ? ne balancing act in which the author’s right was secured and at the same time, his right was not impeding the ‘encouragement of learning. ’ The centuries old common law statute continues to impact and in? uence the copyright law countries such as the U. S. wherein the framers of the U. S. Constitution relied on this statute when draftin g the Copyright Clause of their Constitution which reads as The Congress shall have Power. to promote the Progress of Science. by securing for limited Times to Authors. the exclusive Right to their respective Writings. Moreover, the Congress directly transferred the principles from the Statute of Anne into the copyright law of the United States through a recommendation to the States to enact similar copyright laws, and then in 1790, with the passage of the ? rst American federal copyright statute. The U. S. Supreme Court has observed that the primary objective of copyright is not to reward the labor of authors, but ‘‘to promote the Progress of Science and useful Arts. ’’3 Books in the electronic format do away with universal problems faced by the print book such as their physical nature which exposes themselves to deterioration as they age. The digital book on the other hand can be produced and reproduced at minimal cost, blinding speed and unfailing accuracy and can be transported from one part of the world to another in a matter of a few seconds through cyber space that we call the Internet. It can be stored and retrieved easily and uses no physical space at all except the hard disk on which the data are stored. This will do away with the construction costs and time and physical space involved in the construction of huge libraries. The revolution brought about by the digital technology is already being harnessed by nations such as the United States of America inasmuch as conversion of books in e-format is concerned. 2. 1. E-libraries 2. From the past to the present – The era of digitization That was the age of print technology. Mankind has now entered into an advanced form of technology; we call it the ‘Digital Age’. Print exists, but is slowly giving way to electronic form of data which overcomes the limitations of the print technology under a number of ‘heads’ and ‘counts’ such as storage, transfer, reproduction, archiving, etc. uch that one can say that print is co-existing with digital technology and a time will come when digitization will marginalize print just like the keyboard and computer has marginalized the use of typewriter. You read "Google" in category "Papers" From the concept of a library where one envisaged books in large numbers, we are making a tra nsition into an era of e-books. These are books which will have zero cost on the trees and survive till eternity if kept safely. The threshold of ‘safety’ considerations in an online environment is very high as compared and contrasted with books made of paper. Such a technological format shall have to be protected from the electronic bug that is commonly referred as a ‘virus’ in the etymology of computer science through latest state of the art software programs referred as ‘anti-virus software’. We are slowly doing away with print books and introducing the contents of this physical book in a much ‘eco-friendly’ and technologically savvy format which the digital era has brought about. Art. 1, S. 8 (cl. 8) of U. S. Constitution. The United States of America happens to be one of the ? rst jurisdictions where copyright protection has found constitutional patronage. See, e. g. , Feist Publications v. Rural Telephone Service Co. 499 U. S. 340, 349 (1991), where the United States Supreme Court speaking through Justice O’ Connor observed that ‘‘the primary objective of copyright is not to reward the labor of authors, but to promote the progress of science and useful arts’’, th e latter constituting a constitutional mandate under A. 1, S. 8, cl. 8 of the Constitution of the United states of America. 2 The concept of electronic libraries is not a concept brought very much to the fore in this new millennium. Two such projects owe their origin to the 90s. The Internet Archive is an initiative, a nonpro? t founded to build a digital library offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format. Founded in 1996, the Internet Archive receives data donations and has grown to include texts, audio, moving images, software and archived web pages in its collections. 4 Moreover, Project Gutenberg, the ? rst and the largest producer of free electronic books (e-books), has placed thousands of e-books on the web since 1989, and plans to reach the one million e-book record by 2015. Most of the e-books which are made available by this corporation are in the public domain. However, what about the books enjoying copyright protection? Can they be digitized without the permission of the owner of the copyright? Amongst the bundle of rights which the copyright owner enjoys under the aegis of the statute, one of the most important from the economic perspective is the author’s righ t to reproduce or authorize reproduction of copies of the work. However, the jurisprudential development of the law of copyright has given rise to a concept of ‘fair use’ which is understood to be an af? mative defense to copyright. 6 It recognizes certain uses of the copyrighted work by another without the permission of the copyright holder as legitimate, subject to meeting certain criterion including the most important, that the use must not unreasonably prejudice the economic rights of the copyright holder. The defense of fair use offsets the liability on the part of the user faced with the allegation of infringement in the absence of which the user can be held culpable for infringement. Thus, whether a use is ‘fair’ or not is a question of fact and there is no straight jacket formula to demarcate or distinguish ‘fair use’ from ‘unfair use’, the latter attracting the ‘infringement clause. ’ 4 Retrieved Sep. 12, 2007, from http://www. archive. org/about/ about. php. 5 Retrieved Sep. 12, 2007, from http://www. etudes-francaises. net/dossiers/gutenberg_eng. htm. 6 Campbell v. Acuff-Rose Music, Inc. , 510 U. S. 569, 590 (1994). computer law security report 24 (2008) 253–260 255 3. What is this fair use? The term ‘fair use’ or rather the doctrine as it has evolved in the jurisprudence of copyright law ? ds its roots in the understanding that copyright is not an absolute right. It is permitted, under the sanction of law pertaining to copyright, that certain persons, other than the one who is the holder of ‘copyright’ of the work in question, may enjoy the ‘liberty’ to copy to a limited extent without requiring permission from the owner of the copyright, be it the author or any other person in whom such a right is vested. Fair use is not a ‘license’ but in the nature of a privilege by virtue of which, the person pleading defense against a suit for infringement can escape the clutches of copyright law. As Crews (1993) points out, fair use doctrine helps to prevent the copyright owners’ exclusive rights from interfering with the Framers’ stated purpose of the promotion of learning (as cited in Cohen, 2001, p. 170). The larger goal of copyright as a discipline of law is the advancement of human knowledge. The doctrine of fair use has developed over the years as Courts tried to balance the rights of copyright owners with society’s interest in allowing copying in certain, limited circumstances. This doctrine has at its core, a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research. 7 The term ‘fair use’ is peculiar to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions such as U. K. and India. 8 Until codi? cation of the fair use doctrine in the 1976 Act, fair use was a judge made right9 developed to preserve the constitutionality of copyright legislation by protecting ? rst amendment values. 0 Thus, the doctrine of fair use is an evolving principle of the U. S. Judiciary over the years. This doctrine has now been codi? ed in S. 107 of the copyright law and has been described as ‘‘the most troublesome in the whole law of copyright’’. 11 It is a judge made law codi? ed in S. 10712 of the U. S. Code. These four fair use standards seek to adjudge whether a use of a copyrighted work is fa ir or not and largely balance the tension that exists between the economics of copyright law in relation to social objectives. They have been adopted in S. 07 as follows: (1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonpro? t 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. (4) The effect of the use upon the potential market for or value of the copyrighted work. 4. The Google controversy A degree of uncertainty has always surrounded the concept of ‘‘fair use’’ or ‘‘fair dealing,’’ which allows for non-commercial uses of copyright works in the service of education or information (Sundara Rajan, 2007, p. ). The Google Print,13 now renamed as Google Book Search14 (Google Print, 2005) has sparked a raging controversy as to whether the digitization of libraries can be covered under the fair use clause of copyright and whether it meets the four factor test under S. 107 of the United States Copyright Act, 1976. Google is scanning books (under copyright as well as in public domain) of four University Libraries and one Public Library without the permission of the copyright holder, i. e. authors/publishers. As a result, they are battling a lawsuit15 ? ed by America’s largest Author’s Guild16 and few Publishers back in September and October 2005 which is pending before the New York Court. Opponents are alleging that this act of Google is a blatant violation of copyright law. 7 Retrieved Sep. 12, 2005, from http://www. bitlaw. com/copyright/ fair_use. html. 8 ‘‘Fair use’’ is generally the term used in U. S. law and in other countries with similar doctrines, while ‘‘Fair Dealing’’ applies more to the UK/Australia and other countries with a Common Law heritage. 9 The four factors of ana lysis for fair use set forth above derive from the classic opinion of Joseph Story in Folsom v. Marsh, 9 F. Cas. 342 (1841). 10 The ? rst amendment to the United States Constitution envisages the Freedom of Speech. 11 Dellar v. Samuel Goldwyn, Inc. , 104 F. 2d 661, 662. 12 U. S. Code, title 17, Chapter 1, S. 107. 13 The project involved digitization of the libraries of Harvard, Stanford, Oxford, Michigan University, and the New York libraries which decided to donate materials for scanning. Moreover, a large number of books which happen to be in the public domain have been e-catalogued so that the user can directly download the book and read it. As to the books which enjoy copyright protection, pursuant to an agreement between the company and the copyright holder, online copies of the book can be kept for purchase on the web from the publisher directly and the user may search for the book he requires (as a few sentences of the relevant ‘literary piece’ shall be provided through the search. ) In essence, Google is promoting the dissemination of various works of authorship by facilitating e-purchases and bringing the existence of such literature to the knowledge of the interested consumer. 4 Google rebranded Google Print, which includes the Library Project, as the Google Book Search, in order to better describe the project’s purpose. See Google Print Renamed Google Book Search, Marketing VOX, Nov. 18, 2005. Retrieved Sep. 12, 2007 from http://www. marketingvox. com/archives/2005/11/18/google_ print_renamed_google_book_search/. 15 On Sep. 20, 2005, the Authors Guild (comprising of some 8000 authors) and seve ral individual authors sued Google for copyright infringement. A month later, on October 19, 2005, ? ve publishers – McGraw-Hill, Pearson, Penguin, Simon Schuster, and John Wiley Sons – sued Google. The authors request damages and injunctive relief. The publishers, in contrast, only requested injunctive relief. 16 See Author’s Guild v. Google Inc. (No. 05 CV 8136) USDC SDNY 20 Sep. 2005. The complaint which was ? rst ? led against Google on Sep. 20, 2005 was amended on 26 July 2006 where, unlike the original complaint, it was stated that ‘‘Oxford and New York Public Libraries have indicated that Google will be limited to copying only works that are in public domain. ’’ 256 computer law security report 24 (2008) 253–260 There is no issue with scanning the books in the public domain17 and making it available online. Search engines such as Yahoo and corporations such as Microsoft are coming with such initiatives. 18 Project Gutenberg has been a pioneer in this ? eld. However, as Band (2006a,b) points out, ‘‘The salient difference between these projects and Google’s Library Project is that these projects will involve only works in the public domain or works where the owner has opted-in19 to the digitization, while Google intends to scan in-copyright books without the owner’s authorization, as well as works in the public domain. ’ What Google aims to do is to provide a search index of the books which will be digitized such that the user, searching through the database can ? nd the bibliographic information as well as a few text ‘snippets’ around the search term which he has entered. It equates such an act with that of a person browsing pages in a library or a book store20 (Google Check, 2004). Further it intends to provide the option of purchasing of the book which a prospective buyer may be viewing. 21 The search results will depend on the copyright status of the book. For works in the public domain, the user will have access to the entire text. For works under copyright 17 Works in public domain are considered to be part of a common cultural and intellectual heritage, which, in general, anyone may use or exploit, whether for commercial or non-commercial purposes. 18 Both Yahoo and Microsoft have recently announced digitization projects. Microsoft announced that it would be digitizing 100,000 volumes from the British Library. Yahoo agreed to host the Open Content Alliance, under which entities such as the University of California and the Internet Archive will post digitized works. Band J. The Google library project: the copyright debate. Retrieved Sep. 12, 2007 from http://www. llrx. com/features/google libraryproject. htm; 2006a. 19 The difference between an ‘opt in’ policy and ‘opt out’ policy is that whereas in the former, the burden is on the company to seek permission from the copyright owner as to whether to make available, the digitized copy of the work, the latter on the other hand, presupposes that the company will scan the work unless the author refuses permission. This means that the burden is on the owner of copyright to expressly ‘opt out’ failing which the work will be scanned for the purposes of searching. Whereas considerations of the larger social good would favor an ‘opt out’ policy, one may counter argue that since the owner of the copyright has the exclusive right to authorize reproduction, an ‘opt in’ policy is a right emanating from the intersection of copyright law and the law of contract. However, if permission is sought from each and every author of each of the works in a library which is about to be digitized, it would lead to a considerable ebb of time and money and cause signi? cant delay. Moreover an ‘opt in’ policy, apart from being not feasible, is not justi? able especially n view of the manifold advantages, both commercial and non-commercial, accruing to the owner of the copyright on getting the work digitized free of cost and labor. There is no unreasonable prejudice being caused to the legitimate interests of the right holder and moreover society bene? ts as one of the aims of the project is to enhance the ‘marketabilityà ¢â‚¬â„¢ of the work. The fact that Google commercially bene? ts itself from the deal does not undermine the social value of the end it serves. Google has resorted to the ‘opt out’ policy. 20 Press Center, Google Checks Out Library Books, Dec. 14, 2004. Retrieved Sep. 12, 2007 available at http://www. google. com/ press/pressrel/print_library. html. 21 ibid. protection, the user will see the bibliographic information as well as a few text ‘‘snippets’’ around the search term, unless the publisher has given Google permission to display more text22 (Hanratty, 2005, p. 2). Band (2006a,b) states that Google will not display snippets for certain reference books, such as dictionaries, for there is likelihood that the market for the work could be harmed and further highlights that in such exceptional cases, only the bibliographic information will be displayed. 3 Now what is the ‘business’ interest of Google in this context. It is true that Google is busy scanning all books of the ? ve libraries and digitizing the same, except those subject to the ‘opt out’ policy. 24 It is doing so without the permission of the copyright holders or their licensees, though such parties can choose to restrai n Google by electing for the ‘opt out’ policy. It is doing so in pursuance of an agreement with the ? ve eminent libraries willing to donate books for the same purpose in return of a copy in the digitized format. Google responds that this copying is permitted under the fair use doctrine (Band, 2006a,b). As predicted, Google has been sued for this venture and matter is already pending before the New York Court. The objection is not that Google is creating a full text search index; it is that Google is creating the index without permission of the right holders (Band, 2006a,b). The econometrics of this endeavor has not been disclosed by the company, but one can say without doubt that the costs will run into millions of U. S. ollars. 25 The issue is whether Google is creating a virtual library by this means and, if so, whether Google is permitted to do so under the library exemption or fair use doctrine contained in the copyright legislation of the United States? 4. 1. The library exemption The answer to the ? rst question would be both ‘yes’ and ‘no’ depending upon the copyright status of the work. The works are broadly classi? ed as ‘works in public domainâ€℠¢ and ‘works not in public domain’ and thus enjoying the copyright protection. For the works which are in the public domain and which no longer enjoy copyright protection, Google is both morally and legally justi? ed in doing so. For the works in the public domain no longer enjoy the legal monopoly as such time has elapsed within which the creator of the work had to be rewarded and such time has commenced where the larger goal which copyright seeks to serve, i. e. ‘‘to promote the progress of science and arts. ’’26 Indeed Google is creating a virtual library of works that happen to be in the public domain. However, the more important question is with respect to the works which are not in the public domain and enjoy copyright protection. It is submitted that Google is not creating a virtual library for such works, but An example of what the results will look like is available at: http://print. google. com/googleprint/screenshots. html). 23 See Band J. The Google library project: the copyright debate. Retrieved Sep. 12, 2007 from http://www. llrx. com/features/ googlelibraryproject. htm; 2006a. 24 Refer supra Note 19. 25 See, for e. g. , Band J. The Google library project: the copyright debate, Sabrina I. Paci? ci. Retrieved Sep. 12, 2007 from http:// www. llrx. com/features/googlelibraryproject. htm; 2006a. 26 See supra Note 2. 22 computer law security report 24 (2008) 253–260 257 only a virtual market, for the user, who wishes to browse Google’s database using Google’s search engine. Inasmuch as the answer to the second question is concerned, in relation to the second category of works, i. e. copyrighted works – for the act to qualify as fair use, it has to satisfy the four fair use prongs encapsulated in S. 07 of the copyright statute or meet the library exemption clause contained in S. 108 which introduces certain limitations on the exclusive right of the copyright holder for reproduction by libraries and archives. The library exemption permits reproduction solely for purposes of preservation and security or for deposit for research use in another library or archives, the latter being conditi onal in that it expressly clari? es that it should not be with any purpose of direct or indirect commercial advantage. 7 Moreover, this exemption is limited to only unpublished works for archival purposes, out-of-print works, or replacements for damaged and lost works and not more than three copies can be produced. 28 Libraries, however, are not allowed to systematically make digital copies of their entire collections – whether for research, indexing or educational purposes – without compensation to copyright holders. (Adler, 2006, p. 4) However, the library exemption only applies to libraries, what we commonly understand as a ‘brick and mortar’ library. Though Google’s purpose of converting the book into a digital format may be for storage purposes as well, apart from other purposes, since the digitized copy will be handed over to the libraries which donate such books, it is clear that this exemption does not extend to the digital library or the electronic library or the virtual library. Such concepts are of a much recent origin and the library exemption was never meant to be applicable or capable of extension so as to include digital libraries. nfringement, the defense of fair use is not called for and does not serve any ‘legal’ purpose. In the case of Google, an inference of such a nature may be presumptively drawn since Google is scanning entire books for the purposes of digitization without the express consent of the copyright holders. The right of reproduction is the right of the copyright holder and if no authorization is procured from the right holder, such an act may constitute a prima facie case of copyr ight infringement. Moreover, in no case does fair use permit full copying of the book. Assuming this to be the case, Google must take such a defense into Court for it has little option otherwise, the moot question is raised as to how will it be able to justify its stand? It has been observed that ‘‘from the infancy of copyright protection, [the fair use doctrine] has been thought to ful? ll copyright’s very purpose, ‘[t]o promote the progress of science and useful arts’’’29 and ‘‘the ultimate test of fair use. is whether the copyright law’s goal of ‘promo[ting] the Progress of Science and useful Arts,’. would be better served by allowing the use rather than preventing it. ’30 In the same milieu, one must appreciate that fair use calls for a case by case analysis of the four factor test which throws light on the boundaries of legitimacy of use and thus is indicative and not determinative of the legal position. In essence, it is a highly fact and circumstance speci? c doctrine. By close examination of the letter of the law under S. 107,31 in the analysis involving the ? nding of fair use, it must be ascertained whether there is ‘fair use’ and thereafter ? lter it further to see whether it is for an appropriate purpose or not. The various purposes have been described above, i. e. criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research. However, these are merely exemplary, not exhaustive. 32 4. 2. Fair use test The second is the fair use test which Google asserts but how is this ‘Googleism’ covered by the doctrine? Google maintains that it is protected by limitations set forth in the copyright statute, chief amongst them being the fair use clause and the ? rst amendment values. Google has to satisfy each criteria of the fair use ‘four factor’ test. How Google’s act is justi? ed under this doctrine is a question of fact and an attempt to answer this question will now be undertaken, considering that it is the primary mandate of the U. S. Copyright regime to ‘promote the progress of science and useful arts’ no less than to reward its authors. As noted earlier, the Supreme Court of the United States has recognised the broader context of the copyright system, which is not to reward the author but to ‘encourage’ and ‘promote’ learning. Against that backdrop, Google’s act is weighed against the four factor test. But before that is considered, it has to be acknowledged that the burden of proving that the use was presumptively unfair must shift to the defendant if the plaintiff succeeds in proving that the act complained of constitutes prima facie liability (see WikiReader: Free Software and Free Contents, 2004, p. 41). If there is no 27 28 5. Scrutinizing Google under the four factor test 5. 1. The ? rst test The ? rst test examines the purpose and character of use to ascertain whether such use is of a commercial nature or for nonpro? t educational purposes? It has been observed by the U. S. Supreme Court that the purpose of the use should be non-commercial for a ‘‘commercial or pro? t making purpose. would be presumptively unfair’’ while a noncommercial use would raise a presumption of fairness. 33 Subsequently, it has been noted that ‘‘the crux of the pro? t/ nonpro? t distinction is not whether the sole motive of the use is monetary gain but whether the user stands to pro? t Campbell v. Acuff-Rose Music, Inc. , 510 U. S. 569, 575 (1994). Arica Inst. , Inc. v. Palmer, 970 F. 2d 1067, 1077 (1992). 1 Notwithstanding the provisions of S. 106 and 106A, the fair use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 32 For more see Harper Row Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 561 (1985). 33 Sony Corp. of America v. Universal City Studio s, Inc. 464 U. S. 417, 449 (1984). 30 29 17 U. S. C. S. 108(a) (1). 17 U. S. C. S. 108(b), H. R. Rep. No. 94-1476, at 75–76. 258 omputer law security report 24 (2008) 253–260 from the exploitation of the copyrighted material without paying the customary price. ’’34 ‘User’, in the present context does not refer to the user who shall view the snippets of the work upon a search on Google’s search engine but Google itself which is making the ‘unauthorized’ digital copies. Google is not pro? ting from the exploitation of the copyright material per se for exploitation is not taking place in the ‘commercial sense’. The plan is to provide only snippets and not to sell the book to reap commercial bene? t. Moreover, Google is providing the digital copy to the libraries themselves. Google also has this ‘opt out’ policy whereby the copyright holder can elect not to get his book digitized. Thus, the nature of the act, from an overall perspective, is not for ‘nonpro? t educational purposes’. Being of commercial nature, the gains are not coming from the book, but from the advertising space which Google will sell on its web page. Moreover, commercial use is no longer deemed by Courts to be presumptively unfair35 for many unauthorized uses such as newspaper reporting, parody, etc. nvolve an element of commerce. Assessment of what is commercial must include an examination of the degree of exploitation which in the case of Google is limited to the display of not more than a few snippets which by no means gives the heart of the work and thus is ‘de minimis’ use. The Ninth Circuit considered fair use issues relating to search engine operation in Kelly v. Arr iba Soft Corp. , where Kelly, a photographer, sued a visual search engine for displaying thumbnail images of photographs originally posted on his website. 6 The Ninth Circuit found in favor of the search engine, holding that the search engine’s creation of thumbnails of the photographer’s copyrighted images, although used for commercial purposes, was a transformative, nonexploitative use and therefore fair. 37 As thumbnail is to photography, likewise a snippet is to a book for the purposes of fair use. Google like Kelly is in that context ‘nonexploitative. ’ Moreover, the ? rst test must be read with the other three tests in order to appreciate the larger picture. The primary goal of Google being a ‘for-pro? ’ organization is to generate revenue from the advertising space it sells on the web page. However, how is the society or the owner of the copyright affected so long as such a service is being provided? The masses bene? t as they can make online searches of books relevant to their subject matter and can purchase the same as well. The sales revenue in such cases would go to the publisher and the royalty to the copyright holder. Therefore, it is a ‘win– win’ situation for both the parties at the transacting end. If a third party, which is facilitating this service bene? ts in the process, what is the harm? ikely to ? nd fair use more in factual works than creative works as the threshold of creativity is lower in the former. It has to be appreciated that Google will be scanning books indiscriminately whether it is creative ? ction or factual works. Where there is a likelihood of market harm in displaying the snippets, Google will only display the bibliographic information as it is doing in the case of dictionaries. Once again, it is to be appreciated that Google is not appropriating the digital text of the work for its own bene? t such that it violates the copyright of the right holder. It is providing a service to the society (though pro? ting in the process), but making the works more ‘discoverable’ than ever before and is not appropriating the contents of the work for its personal use. Therefore, whether the work is factual or ? ctional does not make a difference so long as the material is not being appropriated to the economic detriment of the copyright holder or sti? ing creativity in any way. On the contrary, Google is promoting the market of works thus encouraging creativity. Another problem is with respect to orphan works. 39 The Copyright Of? e is preparing recommendations to Congress on how to address the orphan works’ problem – how to enable uses of works whose owners cannot be identi? ed or located (Band, 2006a,b). Orphan works are copyrighted works whose owners are dif? cult or impossible to identify and/or locate. Orphan works are perceived to be inaccessible because of the risk of infringement liability that a user might inc ur if and when a copyright owner subsequently appears. Consequently, many works that are, in fact, abandoned by owners are withheld from public view and circulation because of uncertainty about the owner and the risk of liability. 0 New legislation is being proposed in this regard. The bill would add a new S. 514 to the Copyright Act entitled ‘‘Limitation on remedies in cases involving orphan works. ’’ It would essentially implement the Copyright Of? ce’s proposal to limit liability for an infringing use of an orphan work. As a prerequisite to qualifying for the limitation, the infringer must sustain the burden of proving that he or she performed and documented a reasonably diligent search in good faith but was unable to locate the owner. 1 If the legislation comes into being, Google will be free to digitize orphan works under the fair use doctrine if the owner cannot be located. 5. 3. The third test The third factor is both a qualitative and a quant itative test which is concerned with the amount and substantiality of the portion used in relation to the copyright work as a whole. Though Google is scanning entire books what will be visible to Out-of-print works that remain in copyright, but for which rights holders cannot be located, are colloquially labeled ‘‘orphaned. ’ Several legislative solutions have been proposed to allow access to these so-called orphan works even when the true rights holders cannot be determined with absolute certainty. See United States Copyright Of? ce, Report on Orphan Works (January 2006) and the proposed ‘‘Orphan Works Act of 2006’’ (H. R. 5439). Retrieved Sep. 12, 2007 from www. copyright. gov/orphan/. 40 United States Copyright Of? ce, Report on Orphan Works (January 2006) and the proposed ‘‘Orphan Works Act of 2006’’ (H. R. 5439). 41 ibid. 39 5. 2. The second test The second factor in a fair use analysis is the nature of the copyrighted work that is potentially infringed. 8 Courts are Harper Row Publishers, Inc. v. Nation Enterprises 471 U. S. 539, 562 (1985). 35 See Campbell v. Acuff-Rose Music, Inc. , 972 F. 2d 1429 (1994). 36 Kelly v. Arriba Soft Corporation, 336 F. 3d 811, 816 (2003). 37 ibid. 38 17 U. S. C. S. 107(2) (2000). 34 computer law security report 24 (2008) 253–260 259 the netizen while searching would not be more than a few snippets. Thus for the purposes of copyright it is ‘de minimis’, thus ‘fair. ’ However, notwithstanding whatever is visible to the netizen, Google will be scanning ntire books, thus committing an act of ‘intermediate copying’. In the context of Internet search engines, there are two cases in which reproduction and archiving of the entirety of copyrighted content found on web sites have been deemed a fair use: Kelly v. Arriba Soft42 and Field v. Google. 43 The owners respond that the intermediate copying cases are distingu ishable because they address a problem speci? c to software: translation of programs is the only means of accessing ideas unprotected by copyright that are contained within the program. This problem, of course, does not exist with books. Furthermore, in the intermediate copying cases, the software developer discarded the translation once it developed its new noninfringing program. Google, conversely, will retain the scanned copy in its search index. Band (2006a,b) opines that ‘‘While acknowledging these factual differences, Google’s supporters stress the underlying principle of intermediate copying cases: that copying may be excused if it is necessary for a socially useful noninfringing use. ’’ (p. 7). This is one hurdle that Google is likely to overcome considering the social good the project claims to serve. It is true that some issues need to be resolved since fair use does not permit full copying of books in the ? rst place, leave aside reproduction in the digital format. However, this does not mean that the legislature must turn a deaf ear while the Courts remain mute spectators being bound by the clutches of law. After all ‘fair use’ is a judge made doctrine and the contours of the same are being judicially expanded with the passage of time and introduction of new forms of technology. Keeping in mind that the doctrine has not been tailored to precision, it should be suitably expanded ‘to promote the progress of Science and useful arts’. This, more than anything else, should be its chief consideration. It is asserted that with as few alterations as may be necessary, Google should be allowed to serve the larger interests of the global society by realizing this project. 6. Advocating ‘Googlelization’ of libraries 5. 4. The fourth test The fourth test deals with the effect of the use upon the potential market for or value of the copyrighted work. The fourth fair use factor and perhaps the most important44 is the effect of this project upon the potential market for the copyright works. It encompasses within its fold not only the existing and potential market of the work but also its derivatives. 45 In the famous Sony Betamax case,46 the Court was of the opinion that it was not necessary to show actual present harm nor exhibit with certainty that future harm might result from the particular use but, on the preponderance of the evidence, that some meaningful likelihood of future harm exists. It further observed that ‘if the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated. Though there is commercial gain which might accrue to this for-pro? t organization, it will not be from the use of copyrighted works but from selling of the advertising space. Therefore, Google’s endeavor cannot be said to fail the fourth test. Furthermore, any party (author or publisher) claiming that the project is or will cause harm to the market of the work or has the slightest risk o f causing harm, can resort to the ‘opt out’ policy and thus exclude his work from the digitization project. 336 F. 3d 816, 822 (2003). 412 F. Supp. d 1106 (D. Nev. 2006). 44 ‘‘This last factor is undoubtedly the single most important element of fair use. ’’ Harper Row Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985). 45 ibid at 568. 46 Sony Corp. of America v. Universal City Studios, Inc. 464 U. S. 417 (1984). 43 42 It cannot be denied that there are a signi? cant number of authors who are appreciative of this project. Moreover, it must be remembered that the Author’s guild which has sued Google only represents a fraction of the authors. The user will greatly bene? from the search database as he would be able to see the buried knowledge in every book possible, as is relevant to the scope of his search which otherwise is humanly impossible. What is to be appreciated is that Google is promoting the legitimate interests of the right holders and not unreasonably prejudicing their interests. It is providing latitude to the right holders to withdraw their works, i. e. ‘opt out’ where they are of the view that scanning and subsequent digitization without their permission and minus paying them any consideration, causes unreasonable prejudice to their legitimate interests. It is asserted that the project will bene? t not only the citizens of the United States but also the global citizen since ultimately it is all about accessibility and through the Internet one can access or transact with another individual from any part of the world. Such programs will bene? t developing societies in promoting wider and easier accessibility either free of charge or low cost depending on the copyright status of the work, thus facilitating and ful? lling the ? nal mandate of copyright and at the same time enabling the ? ow of information from the developed countries to the developing world. It cannot be denied that if books cannot be searched online, many users may never locate them and thus may indirectly affect the market for the work. Moreover, it is an author’s basic desire that his work receives the largest possible coverage since that adds to his reputation. The evidence suggests that copyright owners by and large agree that the Library Project has signi? cant social utility. Indeed, authors participating in the Authors’ Guild lawsuit acknowledge that the Library Project will provide them with a helpful research tool. Their objection is not that Google is creating a full text search index; it is that Google is creating the index without their permission (See Band, 2006a,b). Perhaps they are gunning for a piece of cake which Google can easily afford to give in view of its immense ? nancial success. The greed may be premised on the fact that where a company can invest in millions to digitize, it can surely donate in thousands to avoid a litigation which may lead to 260 computer law security report 24 (2008) 253–260 an unfavorable verdict, since it is the unfaithful road of fair use that Google is treading. Whereas other large corporations wait and watch before investing in the sacred domain of copyrighted works, Google con? dently marches on the road to implore justice. Akhil Prasad (akhil_99@hotmail. com) Aditi Agarwala (aditi_ 2k2002@yahoo. com) Research student, Gujarat National Law University, Gandhinagar, India. references 7. On a concluding note Adler A. The Google library project. Retrieved Sep. 12, 2007 from, http://www. publishers. org/copyright/ARA_paper. doc; 2006. Band J. The Google library project: the copyright debate. Retrieved Sep. 12, 2007 from, http://www. lrx. com/features/ googlelibraryproject. htm; 2006a. Band J. The Google print library project: both sides of the story. vol. 1 (No. 2). Retrieved Sep. 12, 2007 from, http://www. plagiary. org/Google-Library-Project. pdf; 2006b. Cohen Jason. Endangered research: the proliferation of E-books and their potential threat to the fair use clause. J Intell Prop 2001;9:163–70. Retrieved Sep. 12, 2007 from Westlaw dat abase. Crews KD. Copyright, fair use, and the challenge for universities: Promoting the progress of higher education. University of Chicago Press; 1993. p. 24–25. Fair Dealing WikiReader: free software and free contents. Retrieved Sep. 12, 2007 from, http://upload. wikimedia. org/ wikipedia/en/a/a9/WikiReader_Free_Software_and_Free_ Contents. pdf. Google Print Renamed Google Book Search. Retrieved Sep. 12, 2007 from, http://www. marketingvox. com/archives/2005/11/ 18/google_print_renamed_google_book_search/; Nov. 18, 2005. Hanratty E. Google library: beyond fair use? Duke Law Technology Review 2005;10. Retrieved Sep. 12, 2007 from Westlaw database. Press Center, Google checks out library books. Retrieved Sep. 12, 2007 from, http://www. google. om/press/pressrel/print_ library. html; Dec. 14, 2004. Sundara Rajan MT. Digital learning in India: problems and prospects. Digital Learning Legal Background Paper. Retrieved Sep. 12, 2007 from, http://cyber. law. harvard. edu/home/dl_ india. The ? nal outcome of the Google project is linked perhaps to the application of one of the most fundamental roles of copyright law which is to secure a legal monop oly to the authors for a limited time and more so of a limited nature. This role derives its roots from the premise that ultimately it is the dissemination of such works to the ‘public’, i. e. he end user which is the key objective. This should serve as a catalyst in enhancing the motivation of authors to produce works for it is such a ‘user’ which creates the demand for the product and is the source of revenue for the right holder. In the absence of this, such works cease to reap the commercial fruits of the author’s intellectual efforts. It may be that companies such as Google are facilitating a larger socially oriented purpose based on the premise of the ‘largest good of the largest number’ through the provision of access to knowledge and to resources of an ‘intellectual’ nature. Provided such projects remain largely in conformity with the law, there is no reason why such substantial investment should not be rewarded considering that the parties at either end of the spectrum, i. e. the right holders and user community will be greatly advantaged by these activities of Google. In economic terms, it is only for this reason that copyright is justi? ed as it gives authors the incentive to create and enhance the public’s access to works. Indeed, in this Googlelization of Libraries, it is a war of ‘fair use’ versus ‘Fare Use’! How Fair or Fare is it?. only time can provide us with the real verdict. How to cite Google, Papers Google Free Essays Two Things They Carried Research Paper Without a doubt the United States was brutal during their 14 years in the Vietnam War. There were times when our soldiers were commanded to shoot Vietnam civilians. Our second source tells us that they killed mostly women and children. We will write a custom essay sample on Google or any similar topic only for you Order Now Perhaps there were times when American soldiers could not tell a Viet Cong sniper apart from a civilian, but either way, there were around 5,000 civilians killed by the United States. There are a lot of veterans who have served in American wars who suffer from PTSD after they get home from battle. Post-traumatic stress disorder could be brought on by high intensity while a soldier is in battle, seeing a fellow soldier die, shooting enemies, and it is evident that shooting civilians can cause it as well. Veterans can get aggressive if their settings at home give them a flashback of a bad memory of war. A lot of soldiers such as veteran Bob Kerrey regret killing civilians and they have had to live with it for the past forty years. There are questions to whether or not the Americans are war criminals for killing these Vietnam civilians. After the first paragraph of â€Å"The Things They Carried† is read, the reader has a very good idea of what the main character, Jimmy Cross, was doing. He was just a young kid in love. His problem was that he was thousands of miles away in Vietnam with nothing to do but march. He would yell at his men to spread out or march to the left, but Jimmy was just going through the motions. His heart was not in the war and he knew it. As much as the military wishes our soldiers were robots, they are humans with feelings. Jimmy Cross made an immature but innocent decision to put his daydreams of a girl back home before thinking about his men. Jimmy Cross carries the burden of one of his soldiers deaths. Jimmy was daydreaming instead of watching his soldier when he was killed on the way to the bathroom, and he knows it will haunt him forever. This short story shows how the soldiers were drones roaming Vietnam killing civilians and burning cities. Jimmy Cross would think about how he had no explanation for the killing of civilians and would just keep marching onward. The similarities between Jimmy Cross and Bob Kerrey are plentiful. They had probably done a lot of the same things while commanding troops in Vietnam. â€Å"Kerry admitted that a combat which he led during the Vietnam War was responsible for shooting dead more than 20 unarmed civilians, mostly women and children. After the killings, the squads commander reported that the unit had killed 21 Viet Cong, and Kerry was awarded a Bronze star. † Kerrey cannot be the only soldier that regrets killing civilians. Soldiers that have experienced a traumatic events previously in war can have flash backs to old battles and lose sense of reality. Shooting innocent civilians did not cause either of these men PTSD. Someone who is having a breakdown might get hostile because they feel like violence is needed for survival. There are lower levels of cohesion, flexibility, and communication in a veteran of war. Killing enemies and killing innocent civilians changes soldiers, and when they are in the heat of war, they do not care who they kill. PTSD is at a different level depending on the soldier. It is apparent in some and not so much in others. What it comes down to is realizing that our soldiers make decisions in war that they would make differently had they not been in the war so long. It distorts what is really happening to the soldier. Combat greatly effects soldiers when they go back into regular society. American soldiers are war criminals for killing innocent civilians. Although the United States should not go back and charge soldiers with war crimes, like with Bob Kerrey, but in future wars civilians need to be spare civilians. The United States has killed civilians in the Iraq war as well. It’s hard to say that anything can be done to the United States for these murders because they obviously have been taking place for a number of years. Civilian murders need to be stopped in order for us to truly win a war. ——————————————– [ 2 ]. Vietnam War and US. M. S. S. Economic and Political Weekly. Vol. 36 No. 21. 2001. [ 3 ]. Impact of Vietnam War Service on Veterans’ Perceptions of Family Life. Charles C. Hendrix. Family Relations. Vol. 42. No. 1. Jan. 1993. How to cite Google, Essay examples