Law.com - Commentary: Is Google Too Big to Infringe?

 Law.com - Commentary: Is Google Too Big to Infringe?

Commentary: Is Google Too Big to Infringe?

Robert Kunstadt
The National Law Journal
May 11, 2009

Technology lets Google scan books. It does it because now it can. But authors and publishers sued -- and a class action settlement is now pending in the Southern District of New York. The settlement would authorize Google to scan copyrighted books and maintain an electronic database of books. Google will be able to sell access to individual books and subscriptions to the database, place advertisements on any page dedicated to a book and make other commercial uses of books. Google will pay the copyright owner 63 percent of revenue. The settlement should be rejected.

I studied copyright law under the late Professor Melville B. Nimmer, author of "Nimmer on Copyright," at the University of California at Los Angeles School of Law. I was fortunate to win a national prize in The American Society of Composers, Authors and Publishers's "Nathan Burkan Competition" for law student papers on copyright law in 1975. My paper was published in the ASCAP Copyright Law Symposium. I was amazed to see online that Google scanned and published large sections of that paper (even though it was about protecting artists' copyrights).

Nimmer used to say "Ownership of a physical object [a book] is not ownership of the copyright in it." That is Copyright Law 101. But Google thought, "We can." The author's fundamental right is to control his or her work. Google's verbatim reproduction of scanned pages exceeds all bounds of "fair use" by abstracts or summaries. That the entire work is not reproduced is an aggravation, not a mitigation, since it violates the author's moral right under the Berne Convention to bar truncation of the work.

Google will argue that author/publisher class representatives and attorneys arranged this settlement. But these self-appointed "guardians" seem worse than no guardians at all. The class needs attorneys who will work harder for injunctive relief -- and contempt-of-court penalties if Google persists in copying. (But injunctive relief to stop Google's infringement would not create an evergreen settlement fund from which class attorneys may seek a share.)

PARTIES MAY NOT AMEND IP LAW

Authors should not be forced to comply with the proposed settlement's nonstatutory formalities to protect the author's rights. The author need only comply with U.S. copyright law. The parties may not amend the copyright law, creating an ad hoc alternative regime. The copyright law needs to be enforced, the settlement rejected and Google's willful infringement enjoined. Google, as a willful actor for profit, is punishable for copyright infringement the same as any software-pirating street peddler. To overcome the public perception that infringers are "Robin Hood" benefactors, IP law needs to be applied even-handedly to litigants large and small so that the public will see it in their own interest to support IP enforcement.

Google pursued its copying project in calculated disregard of authors' rights. Its business plan was: "So, sue me." To approve the proposed settlement would vindicate Google's street ethics: that the law is whatever you can grab and get away with. Google's added twist -- its update on the Dickensian street pickpocket -- is that if you take very little property from very many people, with a technological efficiency unimaginable to Fagin, you have some real money.

The settlement would reward Google's massive unauthorized online reproduction of copyrighted works, by making Google a "shadow copyright office" with a revenue percentage -- unlike the real Copyright Office, which collects a flat fee.

Google took from the authors first -- and belatedly now seeks to legitimize its misconduct by this settlement. Instead, Google should be punished hard, to deter such schemes. Otherwise, Google will succeed where Napster failed. Respect for IP law -- as well as the rule of law in general -- will decline. If an enterprising homeless person pitches a tent in Google's corporate parking lot for a "Thomas Jefferson Used Book & CD Flea Market," will Google let it stay there (since it only occupies part of the lot)? How about for a profit percentage as sweetener to induce "settlement"?

Google's conduct fits the definition of a public nuisance, and may be enjoined as such. It imposes a small harm on a large number of authors. The harm, copying only a portion of each work, is calculated so as not to make it worthwhile for an author to incur the expense of suing for injunctive relief. Google, despite its cute slogan "Don't be evil," is like a large paper mill releasing noxious gas over a wide area, sufficiently diluted that you smell it but faintly. Like those banks that are now "too big to fail," is Google really "too big to infringe"?

Robert Kunstadt is an IP trial attorney in New York. He submitted an opposition to the proposed settlement in the case against Google.

Law.com - Commentary: Is Google Too Big to Infringe?