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A lawsuit challenging Google Inc.’s latest effort to digitize library books and make them searchable on the Internet will push intellectual property laws to their limit, say many copyright attorneys. The latest artist vs. technology battle involves a recently filed lawsuit in which the Authors Guild is suing Google over its unauthorized scanning and copying of book collections at major libraries across the country. Authors Guild v. Google, No. 05 CV 8136 (S.D.N.Y.). A year ago, Google cut deals with libraries at Harvard, Oxford and Stanford universities, the University of Michigan and the New York Public Library to make large parts of their book collections searchable on the Web. Writers and copyright holders allege that the search engine is engaging in massive copyright infringement. Google counters that it is only showing snippets of information — not the whole book — to Web users, and that the service is basically free advertising for authors. A SEMINAL CASE Either way, lawyers say, copyright laws will be put to the test. “The basic point is — Google is copying the books. The question is, ‘What use is being made of it?’” said Ilan Barzilay, an intellectual property specialist with Wolf, Greenfield & Sacks in Boston. “Google is going to say, ‘Hey, look … we’re just redistributing tiny little snippets. It’s free advertising. But the flip side is: The authors can’t feel happy that there’s a digital copy of their book out there. That makes everybody nervous.” Barzilay believes that the Google case could set a precedent in terms of how far copyright laws will bend to meet the demands of technology. “This is another one of the great cases over the last 10 to 15 years where technology is really trying to find its niche among the intellectual property rights laws,” Barzilay said. Google has denied any wrongdoing, arguing its library project is consistent with U.S. copyright laws. “We regret that this group chose to sue us over a program that will make millions of books more discoverable to the world — especially since any copyright holder can exclude their books from the program,” Susan Wojcicki, vice president of product management for Google, said in a recent statement. None of those arguments holds water well with the plaintiffs attorney, Michael Boni, who is seeking damages and an injunction to halt further infringements. He said the issue is not whether Google’s library project is a good idea or not, but about Google using and copying books to make money without the authors’ permission. “The authors and only the copyright holders are the ones who are uniquely positioned to decide how they want to make commercial use of their works,” said Boni, a shareholder at Philadelphia’s Kohn, Swift & Graf. “It’s not for Google to tell them, ‘Trust us. You’re better off this way.’ They don’t have that right. It’s arrogant.” Boni also argues that the authors should get some royalties from the Google project. “Our position is plain and simple,” he said. “If Google is doing it for commercial purposes, cut the copyright holder in to whatever revenues are generated by this [library project].” True, Google might be making money from the library project, but not at the expense of the writers, said copyright expert Jonathan Band, a solo practitioner in Washington. Band believes that Google has a strong fair-use defense, saying that one of the critical facts is that Google will show only a few sentences of books still covered by copyright. Band said that Google meets several of the fair-use criteria, including the nature of the use. Band noted that while Google’s use is commercial, it is highly transformative, as Google will scan books and turn them into an advanced card catalog. The library project also fulfills the criterion of effect of the use on the market, he said, adding that Google will stimulate demand for books that otherwise would lie undiscovered in library stacks.

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