Another inept physical property analogy re: Goole's digital library program

CNN carries this article today on the controversy surrounding Google's Digital Library program.  While the legal question of whether or not it is a fair use of the books to scan them in and make them searchable without allowing the display of more than eight lines at a time is open to debate, I am so sick and tired of all these stupid analogies between physical property and copyright flying around.  Check out this one by a UK publishing group:

To endorse Google's library initiative is to say "it's OK to break into my house because you're going to clean my kitchen," said Sally Morris, chief executive of the U.K.-based Association of Learned and Professional Society Publishers. "Just because you do something that's not harmful or (is) beneficial doesn't make it legal."

I mean, really, what the hell? Google goes to a library, borrows the book completely legally, scans a copy into its indexing database to help web users find it as a research resource, and this is now being equated to felonious trespass?

Trespass is illegal because of privacy concerns, people, not because of information access concerns.  If I walk into your house without permission, it's invading your privacy, not "stealing" something you own. Noone's privacy is being violated when Google takes a publicly available book and links its contents to keywords on the web.

The only plausible analogy (which I also disagree with for other reasons but recognize has some cognitive cohesion) would be if Google were selling the book in competition with the publisher.  Then you might have a case where you could analogize Google to some kind of CD/DVD bootlegging operation that "steals" the profits of the publisher.

So far, however, none of the publishers can show a single shred of evidence that the Google search index will reduce their sales.  If anything, Google has already made the case that it will increase sales.  At any rate, the physical property analogy to breaking into someone's home is deeply flawed and misplaced, and publishers are doing a vast disservice to their industry and their authors by continuing to disseminate such flawed rhetoric.

Comments

[David]

To be honest, I haven't sat down and thought Google's proposal all the way through. I do find part of your argument disingenuous, however. I don't think it matters whether what Google is doing decreases or increases sales of a book. What they are doing is either legal or not, it's effect on sales is entirely beside the point. To invoke another bad analogy - "He saved lives by killing drug dealers."

[Jason Schultz]

Except that under "fair use", whether you are legal or not has everything to do with the effect on sales.

[Richard Silverstein]

Can we consider another question not related to the physical property issue:

Google will sell ads as part of the Google Print program. Since the digitized books offered at the Google site will be the content which encourages visitors to visit their site (& hence sells advertising) couldn't one argue that Google is profiting commercially from the books which are included in its site? In other words, the library card catalogue analogy (used by Fred Von Lohman of EFF) doesn't hold up because those who produce card catalogues aren't selling advertising as part of the card catalogue. I'm not at all questioning the validity of the pro-Google Print argument which I entirely agree with. But I wonder whether the issue of advertising makes the fair use claim a bit murkier?

If we want to be really picky shouldn't Google be offering to share a small portion of the ad revenue with every book author & publisher featured in the Google Print program?

[Jason Schultz]

Fair use is definitely affected by any profit the user makes, but it doesn't preclude fair use. For example, The New York Review of Books uses content from other people's books to fund their subscription and ad base, but don't share any of that profit with the authors. Should they? I don't think so. Same with news reporting, parodies, and other critiques.

In the videogame cases, Accolade was profiting from the use of the Genesis platform and Connectix was profiting from the use of games originally written for the Playstation. But the courts held it was still fair use because none of those activities took significant sales away from the copyright owner. Again, until there is some evidence that Google taking book sales away from authors, they have no right to demand Google pay them. That's just not how copyright law works.