June 25, 2018

A Good Day at the Googleplex

            Judge Chin has issued his decision in the Google Book Search case, and it’s a win for Google. For those of you who have been following the litigation, it’s been a long trip through the arcana of class certification. Today’s decision, however, finally gets to the merits of Google’s fair use defense under the Copyright Act. The outcome is not surprising in light of last year’s decision in the related HathiTrust case, which held that Google’s mass digitization of books on behalf of academic libraries to facilitate scholarship and research and to aid print-disabled library patrons is fair use. The Google Books case could have come out differently, however, given that Google, unlike an academic library, is a commercial enterprise and that the service it provides through Book Search reaches far beyond an academic audience. In addition, the amount of text that Google displays in Book Search results (multiple contextual “snippets” including the search term) is greater than the amount displayed by the HathiTrust (only the page numbers and number of hits per page for the search term). Both of those factors—the commercial or non-profit nature of the use and the amount of text displayed—are relevant to the fair use analysis.

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Copyrights, Fundamental Rights, and the Constitution

There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books, Amazon.com, pirates, Google, and—this last one may surprise you—libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)
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Google Publishes Data on Government Data and Takedown Requests

Citizens have long wondered how often their governments ask online service providers for data about users, and how often governments ask providers to take down content. Today Google took a significant step on this issue, unveiling a site reporting numbers on a country-by-country basis.

It’s important to understand what is and isn’t included in the data on the Google site. First, according to Google, the data excludes child porn, which Google tries to block proactively, worldwide.

Second, the site reports requests made by government, not by private individuals. (Court orders arising from private lawsuits are included, because the court issuing the order is an arm of government.) Because private requests are excluded, the number of removal requests is lower than you might expect — presumably removal requests from governments are much less common than those from private parties such as copyright owners.

Third, Google is reporting the number of requests received, and not the number of users affected. A single request might affect many users; or several requests might focus on a single user. So we can’t use this data to estimate the number of citizens affected in any particular country.

Another caveat is that Google reports the country whose government submitted the request to Google, but this may not always be the government that originated the request. Under Mutual Legal Assistance Treaties, signatory countries agree to pass on law enforcement data requests for other signatories under some circumstances. This might account for some of the United States data requests, for example, if other countries asked the U.S. government to make data requests to Google. We would expect there to be some such proxy requests, but we can’t tell from the reported data how many there were. (It’s not clear whether Google would always be able to distinguish these proxy requests from direct requests.)

With these caveats in mind, let’s look at the numbers. Notably, Brazil tops both the data-requests list and the takedown-requests list. The likely cause is the popularity of Orkut, Google’s social network product, in Brazil. India, where Orkut is also somewhat popular, appears relatively high on the list as well. Social networks often breed disputes about impersonation and defamation, which could lead a government to order release of information about who is using a particular account.

The U.S. ranks second on the data-requests list but is lower on the takedown-requests list. This is consistent with the current U.S. trend toward broader data gathering by law enforcement, along with the relatively strong protection of free speech in the U.S.

Finally, China is a big question mark. According to Google, the Chinese government claims that the relevant data is a state secret, so Google cannot release it. The Chinese government stands conspicuously alone in this respect, choosing to deny its citizens even this basic information about their government’s activities.

There’s a lot more information I’d like to see about government requests. How many citizens are affected? How many requests does Google comply with? What kinds of data do governments seek about Google users? And so on.

Despite its limitations, Google’s site is a valuable step toward transparency about governments’ attempts to observe and control their citizens’ online activities. I hope other companies will follow suit, and that Google will keep pushing on this issue.