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Could Google Fast Flip constitute Copyright Infringement of some Text or Graphic Content in spite of License Agreements? New York Times v. Tasini

By Andis Kaulins

Is Google "Fast Flip" from Google Labs the way that some Google Search results will look down the road?

It certainly looks possible.

We definitely like Fast Flip, already being a fan of Google Books, which features, e.g., one of our own publications.

You can try Google's Fast Flip at the Google News home page (available as of January 8, 2010) via the corresponding menu item there at the bottom of the left column.

Our question here is whether Google Fast Flip could constitute copyright infringement of any of the content shown, despite Google's general licenses with publishers to publish this material.

The search results of Google's "Fast Flip" show partial "headline" pages of publications in partially readable form together with copyrighted text and graphics. Clicking on a publication zooms that particular partial page into fully readable status within Google's "Fast Flip". Only when that zoomed page is clicked again is the user taken to the original publication.

Jessica Dobias at Social Media Law Student thinks Google may have a found a way around the potential copyright infringement problem raised by Fast Flip by entering into enabling licensing agreements with the publishers, but this presumes that the publishers have corresponding licensing agreements with the copyright holders, i.e. writers and photographers, to use their copyrighted works in the manner that they are being used in Google's Fast Flip. They may or may not have, we do not know.

It all reminds us of the US Supreme Court holding in New York Times v. Tasini (see Mark B. Radefeld, Note, The Medium is the Message: Copyright Law Confronts the Information Age in New York Times v. Tasini, 36 AKRON L. REV. 545 (2003), where database-type use of freelance articles by the New York Times was ultimately ruled by the U.S. Supreme Court as copyright infringement, barring a specific agreement permitting such use. Radefeld in footnote 2 of his note article cited above identifies the ultimate holding in Tasini:

"Tasini v. New York Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997) (allowing publishers to place freelance articles in electronic databases under the revision privilege in §201(c) of the Copyright Act), rev?d, 206 F.3d 161 (2d Cir. 1999); Tasini v. New York Times Co., 206 F.3d 161 (2d Cir. 1999) (finding publishers cannot place freelance articles in electronic databases because databases containing individual articles from periodicals do not constitute revisions under §201(c)), aff?d, 533 U.S. 483 (2001); New York Times Co. v. Tasini, 533 U.S. 483 (2001) (holding articles republished in electronic databases are not part of, nor revisions, of periodicals and cannot be relicensed by periodical publishers without the author?s consent)." [emphasis added by LawPundit]

Full post as published by LawPundit on January 10, 2010 (boomark / email).