Google & Grokster
Being new to the blogosphere, I missed out on the initial round of comments on the pending litigation between the Authors Guild and Google over Google Print, Google’s effort to create a searchable database of print books. My sympathies tend to be with Google, as I have yet to see a strong, non-circular argument that authors would be economically harmed by Google Print (at least as I have heard it described).
But even if you believe, as do I, that Google’s activities are or should be fair use, there’s an interesting separate question re: what efforts, if any, Google should be obligated to take to keep the digitized books secure from third parties. For example, what if third parties could use Google Print to easily reconstruct full digital versions of print books (e.g. by sending a series of overlapping queries to Google Print and reassembling the search results)?
Presumably, Google could implement all sorts of technical measures to make this kind of activity more difficult (and indeed, there is some indication that it has implemented them). But what if it didn’t implement any of these measures? Should it be obligated to?
Doug Lichtman suggests that a failure to implement security measures might affect whether Google Print’s activities are fair use in the first place. But I wonder whether this might also be relevant for purposes of third party liability. That is, could Google be held contributorily liable for the actions of third parties who used Google Print to re-construct the printed works, if it failed to provide any measures to prevent this kind of activity?
This hypo raises, at least for me, difficult questions about the proper scope of third party liability. On the one hand, I’m generally wary of imposing requirements on technology companies to protect copyrights, and quite skeptical about the ability of courts to make proper judgments about what should be required. On the other hand, in this situation, I find it hard to argue that Google has no responsibility at all to implement reasonable measures that would keep third parties from reproducing the digital books.