joegratz.net

Seth Finkelstein recently pointed out an aspect of the Google Print project that I’d missed.

Ordinarily, a copyright infringer who copies a work knowing that it’s copyrighted is liable for statutory damages of up to $150,000, even if the actual damages were low or nonexistent.

Google knows that the books it’s scanning are copyrighted, and might be on the hook for a huge statutory damage hit if their use turns out not to be fair use.

There’s only one exception to the statutory damages rule. If you’re a library, an educational institution, a public broadcaster, or an agent of one of those entities, and you have reasonable grounds to believe that your use is fair use, there are no statutory damages.

Seth thinks Google will be able to avoid statutory damages, since they’re acting as the agent of educational institutions and libraries, reasonably believeing that they’re engaging in fair use. And I can’t immediately think of a reason this stratagem shouldn’t have worked — it’s brilliant, really.

Except that they contracted around it. There’s boilerplate in paragraph 12.4 of the scanning contract between Google and the University of Michigan (the only such agreement that’s been made public) that reads as follows:

The Parties to this Agreement are independent Parties and nothing herein shall be construed as creating an employment, agency, joint venture or partnership relationship between the parties.

I wonder why they did that instead of creating a limited agency relationship for the purpose of the potentially infringing activities. The copyright lawyers working on the project are too smart to have missed the statutory damages exception. They must be really sure they can win the fair use case.