There’s been lots of discussion online of this week’s lawsuit filed against Google by a group of authors, over the Google Print project. Google Print is scanning in books from four large libraries, indexing the books’ contents, and letting people do Google-style searches on the books’ contents. Search results show short snippets from the books, but won’t let users extract long portions. Google will withdraw any book from the program at the request of the copyright holder. As I understand it, scanning was already underway when the suit was filed.
The authors claim that scanning the books violates their copyright. Google claims the project is fair use. Everybody agrees that Google Print is a cool project that will benefit the public – but it might be illegal anyway.
Expert commentators disagree about the merits of the case. Jonathan Band thinks Google should win. William Patry thinks the authors should win. Who am I to argue with either of them? The bottom line is that nobody knows what will happen.
So Google was taking a risk by starting the project. The risk is larger than you might think, because if Google loses, it won’t just have to reimburse the authors for the economic harm they have suffered. Instead, Google will have to pay statutory damages of up to $30,000 for every book that has been scanned. That adds up quickly! (I don’t know how many books Google has scanned so far, but I assume it’s a nontrivial numer.)
You might wonder why copyright law imposes such a high penalty for an act – scanning one book – that causes relatively little harm. It’s a good question. If Google loses, it makes economic sense to make Google pay for the harm it has caused (and to impose an injunction against future scanning). This gives Google the right incentive, to weigh the expected cost of harm to the authors against the project’s overall value.
Imposing statutory damages makes technologists like Google too cautious. Even if a new technology creates great value while doing little harm, and the technologist has a strong (but not slam-dunk) fair use case, the risk of statutory damages may deter the technology’s release. That’s inefficient.
Some iffy technologies should be deterred, if they create relatively little value for the harm they do, or if the technologist has a weak fair use case. But statutory damages deter too many new technologies.
[Law and economics mavens may object that under some conditions it is efficient to impose higher damages. That's true, but I don't think those conditions apply here. I don't have space to address this point further, but please feel free to discuss it in the comments.]
In light of the risk Google is facing, it’s surprising that Google went ahead with the project. Maybe Google will decide now that discretion is the better part of valor, and will settle the case, stopping Google Print in exchange for the withdrawal of the lawsuit.
The good news, in the long run at least, is that this case will remind policymakers of the value of a robust fair use privilege.