If you were a publisher/author who hasn't give permission to google to digitize, and you find that the google library project has, in fact, digitized your copyrighted work, who would you sue?
Scratch a lawyer and you'll likely get the standard answer: everyone involved.
Yet if you look at liability in terms of dollars, copyright law is much more generous to libraries and education institutions when it comes to penalties. If the library makes a good faith fair use argument, the penalties can go down to $0, even if the library loses the case. That would not be true for Google.
If the library was the only actor, the case might not be brought. But here, there's a deep pocket -- Google. If the library is a co-defendant, I believe the library could be responsible for attorney fees unless that responsibility has been shifted by contract to Google.
For a thoughtful discussion of attorney fees and fair use, see Robert Kasunic's "Fair Use and the Educator's Right to Photocopy Copyrighted Material for Classroom Use" esp the text around footnotes 28-29.
Can a good faith fair-use argument be made here? I think it can and should be made, though it will vary by the individual circumstances - what copies are being made of which items, and what happens to those copies...
The four fair use factors are: Purpose, Nature of the work, Amount, Market Impact. See my article already linked above.
Perhaps blog readers might care to comment on how to apply these factors (and the overall purpose of promoting progress), to this project.
It looks like the Google pigeons might be coming home to roost - from Bernie Sloan on Web4Lib:
"Some publishing groups say that Google's ambitious project to scan
millions of library volumes and make them searchable could run afoul of
copyright laws, and that Google should get permission from publishers
before proceeding... some publishing-industry officials say that even
scanning a book and offering brief excerpts without the publishers'
permission could violate copyright because scanning the book would
represent a reproduction of the work, and the copying would have been
done by a commercial entity rather than the library that purchased the
book."
The full article is in the "Today's News" section for February 7
(unfortunately it's only available online to subscribers):
Young, Jeffrey R. Publishing Groups Say Google's Library-Scanning Effort
May Violate Copyright Laws. (Today's News). Chronicle of Higher
Education (online version). February 7, 2005."
Posted by: Andrew Mutch | February 07, 2005 at 08:10 AM