Thursday, September 15, 2005

Patry says Google Print is copyright infringement

William Patry has weighed into the debate about whether Google are infringing copyright with the Google Print project.

"Google has gotten a lot of publicity lately about its efforts to digitally scan entire libraries, copyright be damned. I had differences with book publishers in the past (from the late 1980s to 1994) when a few mediocre, mid-level in-house counsel scared of their own shadows temporarily got in a position to set policy and did so disasterously: on issues such as fair use of unpublished works and repeal of Section 412, I believed their views at the time were frivolous and hypocritical. Under the current AAP Presidency of former Congresswoman Pat Schroeder, balance and dignity have been, fortunately, restored.

And on the Google issue, I share publishers' concerns. While I think the project is fantastic and would love for it to come to pass (it would greatly faciliate and democratize scholarship and thereby significantly increase learning), as to works under copyright, it can only be done with permission. Absent permission, I see no way for it to be considered fair use or covered by Section 108.

The chutzpadik manner in which Google has gone about this is breathtaking, and indeed what they have done so far is, in my opinion, already infringing, that is the copying of the books even without making them available. If I were a book publisher, I would file a declaratory judgment action and hope that Judge Rakoff, of MP3.com fame, got the assignment. Telling publishers they can opt-out is not the way the Copyright Act works and "Judge Dread" is just the guy to cut down them down to size."

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