[Moof_in_Charge]

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The publisher's position is that Google needs permission to make the electronic copy in the first place,

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What Google is doing is covered under fair use. I havent seen anyone in the industry put an initiative to do something similar to this... It takes Google to come forward with their money and creativity to do something where everyone will benefit but these paranoid self riotous control freaks want to go around claiming ownership . I suspect they fear this will open the gates for people to eventually copy their stuff and this is the same flawed thinking that plagues the media companies, but the worst intention of all is maybe they want to get a cut from Googles search fees. In either case they are nothing but an obstacle and just like any pothole, theyre gonna get it with a big bulldozer..
For further detail and name calling see Potato(e) fungus in previous post /forums/ubbthreads/images/graemlins/tongue.gif

[HumanJHawkins]

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well there's this hack and that hack

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That's a very interesting point though, from a liability standpoint. What if someone were to hack into Google for example, download the entire catalog of a certain publisher's works, and then put it out on the internet for free? It seems to me that Google would then be liable for potentially tens if not hundreds of millions in damages.
Even if it is determined that what they are doing is fair use, I would bet that they become responsible for any such damage if it were to occur.

[mac_the_knife]

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That's a very interesting point though, from a liability standpoint. What if someone were to hack into Google for example, download the entire catalog of a certain publisher's works, and then put it out on the internet for free? It seems to me that Google would then be liable for potentially tens if not hundreds of millions in damages.
Even if it is determined that what they are doing is fair use, I would bet that they become responsible for any such damage if it were to occur.

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As I understand it, Google is only liable if they fail to act in a reasonably prudent manner to safeguard against such hacks. Generally, this involves taking into account the likelihood of harm, as well as the burden of implementing whatever safeguard you have in mind. If the burden is too great, then the law won't require you to implement that safeguard, even if the harm does in fact occur.
Would the law require basic technological safeguards, such as disabling "right-clicking"? Probably. Would the law require unhackable safeguards? I doubt it. Anything in between "basic" and "unhackable" will probably have to be a very fact-specific inquiry.

[minderbinder]

"What Google is doing is covered under fair use."
Is it? What part of fair use allows copying entire works? And making even parts of those works available to the public?
(This isn't like a book review with a passage in it, those don't copy the entire work)
Seems to me that this sets a new precedent, whether it is fair use is something that can only be determined by the courts.

[pdrayton]

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Is it? What part of fair use allows copying entire works? And making even parts of those works available to the public?

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Copying entire works isn't prohibited by copyright law.
Copyright law permits publishing quotes and small excerpts from copyrighted books without having to obtain permission from the copyright holder.
Google is scanning collections of books from specific libraries. Some libraries are providing only books that are in the public domain. Other libraries are having Google scan their entire collections.
In no case will Google distribute more text from copyrighted books than is already being done.
It's a shame that publishers have their heads so glued to their books that they can't see the benefits that Google is offering to them.
And to really show how dense these publishers are, just look at this information from Google:
"Google Print offers links to popular booksellers from whom you can buy the books you find. These links aren't paid for by those booksellers, and we gain no benefit when you buy books from them. We do earn revenue, however, from user clicks on the contextually targeted ads that appear on Google Print book pages. We share this ad revenue with the publishers of those books."

[jdb8167]

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Seems to me that this sets a new precedent, whether it is fair use is something that can only be determined by the courts.

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That pretty much covers it. If Google was a non-profit like a library (are all free libraries non-profit?) then I think they would have a good chance to win. It seems to me that what they want to create is the digital equivalent of a index catalog in a library.
But because Google wants to profit from this it probably becomes a much more difficult proposition for them to win in court.
There are a couple of points that I've read that I find interesting. The publishers in this case made the point that if you allow Google to do this, you've opened the floodgates and allow everyone to do it. That makes it extremely difficult to police. This is the best argument against Google's Print service that I've read so far. What is to stop a less scrupulous company from just putting everything online and then waiting for the authors and publishers to sue.
The other point is that this isn't as big a deal for literature as it is for publishers of technical manuals and references. Those could take a big hit if Google was sufficiently efficient enough that doing a search brings up book content that is complete for the particular topic. I can easily see this causing a slow down in sales of those types of works.

[mac_the_knife]

To piggyback off of some of your points:

In reply to:

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Copying entire works isn't prohibited by copyright law.

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Quite true. In fact, many of the landmark cases on fair use have taken up the issue already. In the (in)famous "Betamax Case", the US Supreme Court decided that VCR's could be used for substantial noninfringing uses, such as what the court called "time-shifting", that is, the copying of entire works for later viewing.

The major case dealing with online fair use in the context of works of the visual arts is Kelly v. Arriba Soft. Kelly found that creating thumbnails of images was fair use, even though the entire work was copied in doing so. The reason for this was that Arriba Soft was taking no more of the work than was essential to its purpose (of course, in creating thumbnails you copy the entire photographic work by necessity).
Finally, you may remember the Virtual Game Station, published by Connectix, which allowed Mac users to play Playstation games on their computer. Obviously, this didn't please the people at Sony. In the resulting court battle, it was held that while Connectix copied the entire Sony BIOS (a copyrightable work of software) several times, it was only an "intermediate" use, where Connectix's final product copied smaller portions. The decision followed a similar dispute between Sega and Accolade. Of course, after the court ruled against Sony, they went ahead and bought Connectix.
So, in response to minderbinder, I think that there is precedent in declaring copying of entire works, even for commercial purposes, to be fair use, depending on the kind of use involved. I don't think it's been applied to literary works, but if it can be applied to computer software, thumbnails of graphic works, and TV programming, I don't see why the same principles couldn't extend to books. Like Connectix, Google's copying of the entire book seems "intermediate" to its final use. And like Kelly, the amount of the work copied is arguably no more than is necessary to make a fully-functioning search tool, and the use is just as transformative as making thumbnails out of full-size photos.
Now:

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t's a shame that publishers have their heads so glued to their books that they can't see the benefits that Google is offering to them.
And to really show how dense these publishers are, just look at this information from Google:
"Google Print offers links to popular booksellers from whom you can buy the books you find. These links aren't paid for by those booksellers, and we gain no benefit when you buy books from them. We do earn revenue, however, from user clicks on the contextually targeted ads that appear on Google Print book pages. We share this ad revenue with the publishers of those books."

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I think every author/publisher is making a calculation of whether the benefits of the Google Print program outweigh the presumptive risks of the information being freely available online. The authors/publishers may not know how to calculate this, and they may have calculated the risks and benefits wrongly. However, if I own a business and calculate that the benefit of insuring my business against theft does not outweigh the risk of theft, I am free not to purchase insurance, even though I may have calculated wrongly, stupidly, whatever.
The authors/publishers are concerned that they are not allowed to make that calculation of benefit and risk before their material becomes freely available online. I don't think it's "dense" to show this concern. The question, however, is whether they have the right to do anything about it. As I read the fair use provision of the copyright law, I don't think they do.

[kinematic]

I probably don't understand enough of public domain laws. Never claimed to.
Just an observation that it was easy enough for me to abuse this system, especially since I found all the materials I needed from books I was planning on purchasing. I never knew what Google's sources were and what the policy for use on a beta program by them. I came across it by luck, and started copying materials like a crazed kid in an unmanned candy store.
Don't get me wrong. I love the library, I love the bookstore and when both Amazon and Google both came out with a way to audit copyrighted and public domain books before buying them, I was all for it. I love to try and exploit a system and see how easy it is to abuse, but in the end, I believe in paying or purchasing for things that I need or use. I'm even a proud iTunes music store addict, so I'm all for technology that encourages my laziness of leaving my home.
Merely pondering and experimenting...

[pdrayton]

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Just an observation that it was easy enough for me to abuse this system, especially since I found all the materials I needed from books I was planning on purchasing.

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Again, what you did was not abuse! It's perfectly legal and ethical. You were not harming or taking advantage of anyone.
Only in New England do people feel guilt-ridden about not using the library!
Stop with the abuse thing!

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but in the end, I believe in paying or purchasing for things that I need or use.

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Kudos to you. I wish there were more people with your attitude. But you're going way beyond what is intended by copyright laws in the US.

[minderbinder]

"Copying entire works isn't prohibited by copyright law."
It isn't? Where in the fair use clause is copying entire works permitted? I know it's allowed for individuals to make backups of works they own, but this doesn't fall under that category.
Fair use is very specific and limited. What part of it allows copying entire works like this?

"if you allow Google to do this, you've opened the floodgates and allow everyone to do it."
Absolutely. It also interferes with the ability of publishers/authors to do this themselves (which using a similar model, they could get 100% of ad revenue instead of sharing it with Google).
"So, in response to minderbinder, I think that there is precedent in declaring copying of entire works, even for commercial purposes, to be fair use, depending on the kind of use involved."
There is some precedent, fair use DOES allow copying entire works, but just in very limited circumstances. I just happen to feel that this situation doesn't fall under any of those circumstances.

[pdrayton]

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It isn't? Where in the fair use clause is copying entire works permitted?

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It's permitted by the Copyright Act of 1976 because the service Google is creating is "transformative" and isn't duplicating what publishers and authors currently provide. The publishers and authors, despite sitting on a treasure trove of information for years (and the technology necessary to do what Google plans to do), never attempted nor had the idea to do what Google is doing. Copyright law does not protect businesses from smarter competitors or new market entrants who create new products.

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It also interferes with the ability of publishers/authors to do this themselves (which using a similar model, they could get 100% of ad revenue instead of sharing it with Google).

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Publishers and authors didn't do this themselves. The could have. They should have. They had the valuable material. The technology was available. But they didn't. Now they are complaining about getting a portion of the revenue from Google instead of all of the revenue. If Google wasn't doing this then the publishers would be getting nothing. Seems the publishers want all the profits and none of the work. Copyright law supports and protects creativity in coming up with new ideas/work.

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I just happen to feel that this situation doesn't fall under any of those circumstances.

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You're not alone. Legal experts are divided on this issue.
I, however, agree with the opinions of these two experts:
Jonathan Band, a Washington, D.C., lawyer specializing in Internet intellectual property issues, said the other day, "The most important issue when you're doing a fair-use analysis is, 'Is there any harm to the market?' In this case you can't find it." (Had Google not come up with this idea there is no evidence at all that the publishers and authors would ever have done it themselves).
Mark Lemley, a professor at Stanford Law School said, "The consequences of a loss for Google are enormous. If the publishers were to actually prevail in this lawsuit, I think it would be essentially impossible to maintain a search engine." (Web search and book scanning are essentially the same. Both uses are fair and don't require a copyright holder's permission for information to be found.).

[minderbinder]

"It's permitted by the Copyright Act of 1976 because the service Google is creating is "transformative"
and isn't duplicating what publishers and authors currently provide."
Both of those points are debatable.
"never attempted nor had the idea to do what Google is doing."
Never? The world hasn't ended yet, we have no way of knowing if they would have done this in the future. And how exactly are you able to read the minds of the publishing community? This sort of idea has been discussed for years.
"Copyright law does not protect businesses from smarter competitors or new market entrants who create new products."
It's supposed to protect content creators from other business exploiting their IP. And it's funny to call this "new product" when the only content it contains is other people's material.
"Publishers and authors didn't do this themselves. The could have. They should have."
And who's to say they wouldn't have in the future? Copyright law doesn't say you lose control of your material if you don't put it to good use. And it's not intended to punish copyright owners who don't act as quickly as third parties. One of the rights given by copyright law is the power to NOT publish your material. An author/publisher can take material out of print if they so choose.
"If Google wasn't doing this then the publishers would be getting nothing."
If the authors hadn't created this material, Google would be getting nothing. If authors want google to do this, that's great. But they should be able to negociate the terms with Google, not have them completely dictated by Google.
Not to mention that it's the author's RIGHT to have Google do this with their work, and get nothing if they so choose.
"Seems the publishers want all the profits and none of the work."
They have every right to the first. Whether they do the work and make the money on their own should be in their hands.
"Copyright law supports and protects creativity in coming up with new ideas/work."
Yes. And a third party using and profiting from someone else's work doesn't support or protect creativity.
'Is there any harm to the market?' In this case you can't find it."
This service is very new, I think it's too early to declare that the market can't be harmed by this.
"(Had Google not come up with this idea there is no evidence at all that the publishers and authors would ever have done it themselves)."
Digitizing libraries and making them searchable? The idea has been discussed for years. Google's idea isn't really a new one, they're just the first with the hard drive space and the cash to try and do it.
"Web search and book scanning are essentially the same."
Is this something Lemley said, or your interpretation? I don't consider them the same, when a website is put online it is made available to the general public - a search engine just makes it easier to find. With book scanning, material that is not available online is being put online by someone other than the author and publisher. I consider those two very different.
"Both uses are fair and don't require a copyright holder's permission for information to be found."
Web search is fair use. Whether book scanning is, still remains to be decided by the courts.

[pdrayton]

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Both of those points are debatable.

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I'm not sure why you bring that up when you're replying to my statement, "Legal experts are divided on this issue."

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Is this something Lemley said, or your interpretation?

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Not something Lemley said... a consensus of legal experts all used that. Web search engines acquire information in basically the same way as scanners. Both use software to recognize and catalog the information. Search engines just don't have the actual machine because they are dealing with copyrighted information published on the internet.
It should be pointed out that there are moves in Congress to restrict the cataloging of copyrighted material that is published on the internet. The implications of such legislation, were it to actually be enacted into law, would have the same impact as potentially one would see should Google not prevail in the lawsuits from the publishers/authors.
I've stated what perspective I come from, and I've been very clear in stating that legal experts are divided on the issue. My only hope is that people realize the full implications of these publishers winning their lawsuits. One implication could be that some of our most common uses of the internet would suddenly be off limits.

[minderbinder]

"Not something Lemley said... a consensus of legal experts all used that."
A consensus? If the experts are divided, there is no consensus.
"Web search engines acquire information in basically the same way as scanners."
As I pointed out before...except for the fact that one set of content is already online and available to the public and the other isn't.
"It should be pointed out that there are moves in Congress to restrict the cataloging of copyrighted material that is published on the internet."
I hadn't heard that. Do you know the names of any of the proposed bills, I'd like to read them.
"One implication could be that some of our most common uses of the internet would suddenly be off limits"
Again, that's pure speculation at this point. I don't think there's any connection between the two - with web indexing, the info is already freely available online to the public, and Google isn't serving up the found website, it's just directing the user to the original website. (Worst case is google has to stop serving up cached pages)