Textbook Publishers Are Bluffing In Battle With Google
You heard it here first — the textbook publisher associations will be forced to accept Google's plan to digitize a searchable database of books drawn from the Stanford, NYU, and other university libraries. This is because ultimately all publishers will win as Google boosts the value of literacy, increases the ease of scholarly research, and returns serious thinking to its proper place somewhere near the apex of human activity, and distinctly above warfare and stock-car racing. While the paper-pulp-pushers who think of themselves as Publishing's Old Guard prepare to die in the last ditch, the vanguard of the battle has already swept past them. The future is digital. Paper is dust.
I was unhappy to see Wednesday's article claiming note-taking services may violate professors' copyrights.
Unfortunately, this is meritless sword-rattling from a disgruntled professor and nothing more.
A brief background: Copyright is a system of government protection granted for original creative works. For example, copyright applies to books, music and videos. Copyright grants exclusive control over certain uses of the work, such as modification and redistribution, for a limited time. The system was designed in the Constitution as a way to incite creation and ”promote the progress of science and useful arts.“
Professor Laurence Alexander's claims of copyright are invalid because copyright only applies to works fixed ”in a tangible medium of expression.“ An instructor's spoken explanations are ephemeral and in no way fixed in a tangible medium.
Alexander also complains that notes copy ”facts, theories and concepts that the professor has learned and studied.“ However, as the U.S. Copyright Office's Web site explains, mere ”ideas, ... concepts, principles“ and the like are explicitly ineligible for copyright.
If note-taking companies copied a professor's every word or engaged in wholesale copying of a textbook, a claim could be made for copyright violation. But that's not what these companies do.
What note-taking companies such as Einstein's Notes and Smokin' Notes do is summarize. Summary is not, and never has been, a violation of copyright. Despite what Alexander may claim, note-takers are indeed contributing value when they summarize lecture material and organize concepts into learning aids.
Copyright law has always recognized summary as a valid derivative work protected as a fair use under law, as it should.
What's next in the copyright crusade - Cliff's Notes? Movie reviews? Book reports?
The very same law that allows scholarly quotation, commentary and criticism protects note-takers, even if they make money without paying the professors extra. When was the last time you paid an author whose paper you cited?
The free flow of information is essential in a democratic society. The ability to summarize, quote or report the words of another person, without asking anyone's permission or paying any royalty, is key to ensuring a free exchange of thoughts.
Furthermore, even if the law allowed professors to prosecute note-takers, they should not. Legal rights do not always equate with moral rights. Everyone should abhor the use of copyright as a bludgeon to silence speech and creativity.
Unfortunately, copyright and other so-called ”intellectual property" laws are used precisely in this manner time and again. The shift from viewing copyrights as the limited monopolies they are to seeing them as a form of property is dangerous, unprecedented and extreme.
If the world is to remain free to create and communicate, copyright law must retain its balances and protections. Copyright serves an important purpose in providing incentives for creators. However, we must remember its ultimate purpose and ensure that its exclusive rights do not come before the public good.
Academics, of all people, should support a view of copyright that encourages the dissemination of information - the primary purpose of a university. Threatening companies that produce educational aids is poor behavior for an institution that exists to educate.
Gavin Baker is a former Alligator writer and the president of Florida Free Culture, a student group that works to reform copyright law.
http://www.alligator.org/pt2/051103column.php[/quote]
Google Print does not in any way resemble the process of making a screenplay or movie based on a novel's plot. We should note first that plots are constitute an uncopyrightable “idea,” as Romeo and Juliet illustrates — no one owns the story of Star-Crossed Lovers, which is at the heart of Westside Story and many other dramatic works. Thus, the WG is off-base in suggesting that Hollywood isn't free to reuse “plots.” However, turning a book into a screenplay does create a derivative work, something that only the author is free to do without a license. But Google is obviously not doing this — they're just copying and compiling and making accessible to search.
Second, Google Print is performing an incredibly important archival function that the Publishing Monopolists have neglected — preserving their archive of out-of-print books. Apparently, 70% of the books still protected by copyright (everything published after 1023, thanks to the Sonny Bono Copyright Extension Act of 2002) are OUT OF PRINT! That is to say, turning into dust. The loss of knowledge will be huge if these aren't scanned, but the Publishing Lobby has no desire to do that — they're busy trying to crank out another one-hit-wonder using mass-hypnotism techniques that seem to have lost their effect.
Third, that there may be a financial reward for Google is a red herring. We do not punish success, nor do we scoop cream off of Google's dessert because the Media Monopolists can't seem to play their own game. Google may well make money on the Google Print project, but that has yet to be established, and if Google engages in contributory infringement or aiding and abetting piracy, it will be sued for infringement, and get sued under valid existing law approved by the Supremes in the Grokster decision. (See my post on that topic.) But Google is not selling its catalog, it is making it available for use. The content is simply not being tapped for its value in a way that copyright law was intended to protect. Rather, it is expanding the means in which the public can make “fair use” of material that exists first and foremost because the People of the USA champion Freedom of the Press. Now it's time for the Press to pay us back in gold for all the blood, sweat and tears it took to secure that Freedom.
[quote="Farhad Manjoo in Der Spiegel“]Throwing Google at the Book
Google's new search engine of books puts a world of knowledge at our fingertips. Publishers say the Internet giant is robbing them of their rightful fees. Maybe it's time to call copyright laws history.
A page from ”Transatlantic Sketches,“ a European travelogue by 19th century American author Henry James, that is part Google's new project to scan the world's most important texts.
Just the announcement last December elicited a thrill. Google, the young oracle that brought order and sense to the World Wide Web, now planned to take on the printed word, reaching into major university libraries to scan and digitize all the knowledge contained in books. The company promised to make every printed book as accessible as a Web site, allowing anyone with Internet access to search through every page on every book for any particular word or phrase. Google had signed deals allowing it to scan millions of books at Stanford, the University of Michigan, Harvard, Oxford and the New York Public Library. So ambitious was the effort that its only real analogues were the stuff of legend and fiction: the lost library at Alexandria and Jorge Luis Borges' fantastical Library of Babel. On hearing of Google's effort, one librarian told the New York Times, ''Our world is about to change in a big, big way.”
A year later, Google's grand plan to digitize the world's books still seems as fantastical as it did when it was first proposed. Earlier this year, the company started scanning books at libraries, and on Nov. 3 launched an elegant beta version of its book search engine — but the project faces an uncertain future.
At issue is copyright law: Does Google have the legal right to copy library books and make them searchable online? Trade groups for authors and publishers say no. In September, the Authors Guild, a professional society of more than 8,000 writers, filed suit against Google to stop the scanning project; in October, the Association of American Publishers, which represents large publishing houses, also sued. Both groups charge that Google, which does not plan to ask authors and publishers for permission before it scans their books, would engage in massive copyright infringement — and also cost the book industry a great deal of potential revenues — if it goes ahead with its effort.
Google insists that its project is legal, as it would only offer snippets — one or two sentences — of copyrighted works that publishers had not given the company permission to scan. It also argues that its plan would boost, not reduce, book sales, and would be a boon to the book industry. But its quest to bring books to the Web now looks certain to spark a major courtroom battle, and it's a battle that Google, however deep its pockets and well-remunerated its lawyers, is not guaranteed to win.
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“One of the great things about this conflict is it points out the absurdity of American copyright law,” says Siva Vaidhyanathan, a media scholar and copyright expert at New York University. Vaidhyanathan believes that what Google wants to do may well be illegal under today's copyright regime. At the same time, he notes that Google can't really create a system that relies on publishers' granting permission to digitize their books, namely because nobody really knows who owns the rights to all the books in the library. So, Vaidhyanathan says, Google is stuck; scanning books without asking permission may be illegal, and scanning books after asking permission is impractical to the point of impossibility.
But if copyright law stands in the way of Google's grand aim, isn't it time we thought about changing the law? That's the most salient question raised in the fight over Google's effort to build a digital library. The company — and the host of other firms that will surely follow in its path — is poised to create a tool that could truly change the way we understand, and learn about, the world around us. A loss for Google would echo throughout the tech industry, dictating not just how we use technology to improve books but also how other media — movies, music, TV shows and even Web pages — are indexed online. Can we really afford to let content owners stand in the way of Google's revolutionary idea?
In response to the legal uncertainty, Google put its scanning project on hold for several months in the summer, but it has now resumed the project. Last week, the company put its first stash of scanned library books online. Diving into this trove is a trip. You could easily lose days in Google's digital labyrinth, not unlike the way you might walk into the stacks at Stanford or Harvard on a Friday and emerge punch-drunk on a Sunday, amazed by the breadth of the work you've seen. The difference is that Google's library is searchable; you can find what you want not just by looking up an author or a Dewey Decimal subject, but also by typing a particular phrase or quote — “the play's the thing,” say, or “Let my people go!” — that you're looking for in a book. Google will look for your search term in every page of every volume in the library, and instantly show you images of the pages in each book where the phrase appears.
At the moment, Google's library mostly contains a trove of work published before 1923; copyrights on these books have expired, and the books' contents, therefore, are in the public domain, free for anyone to use in any way. Amid these titles you'll find all manner of books in Google's stash: Among many other things, there's an illustrated first edition of Henry James' “Daisy Miller,”; a 1702 history of France with an exceedingly long title; “Debates of the House of Commons, 1667 to 1694,” which records a certain Mr. Finch arguing against the naturalization of aliens; and this 1785 gardening book, which advises farmers to plant hedges of holly around their corn, since “Holly does not fuck the land,” and therefore rob the corn of nutrients. (It's possible, though, that this last one is actually “suck the land,” and that Google's text-recognition program made a mistake with the old script.)
Google's collection also includes a vast number of books published after 1923 that publishers have already given Google permission to include — but because these books are under copyright, Google limits their functionality in order to reduce the chance that the service will negatively affect book sales. For instance, searching for the name Calliope in Jeffrey Eugenides' “Middlesex” will yield several page numbers but not the content of all those pages. That way you can't read the entire book through the search interface.
The main fight between Google and publishers involves a third category of books, those that are still under copyright but that publishers have not given Google permission to include in its library. When Google, in the course of scanning books at a library, comes upon a book published after 1923, publishers insist that the company should set it aside and get permission first; Google says that it has the right to scan these books and make them available online. The company insists that it will soon include such books in its library.
At the moment, though, what this means for you is a truncated library. Right now, no text search in Google will return any phrases contained in many popular titles. For instance, you can't find such titles as “Lolita,” “The Great Gatsby,” “The Best and the Brightest,” “The Da Vinci Code,” or much of anything by John Updike, Philip Roth, Richard Feynman, John McPhee, Shelby Foote, Terry McMillan, Sharon Olds, Julia Child and Woody Allen.
This is most problematic for obscure books, books you don't know you're looking for. Take this hypothetical scenario: Let's say that somewhere in the stacks at the University of Michigan there is an essay by a writer you've never heard of, on a subject you didn't know about, in a volume no longer in print, by a publishing house no longer in business; let's say, moreover, that even though you don't really know it, this essay is exactly what you're looking for, the answer to all your searching needs, in much the same way you find Web pages every day by people you don't know that turn out to be just the thing. Ideally, as Google envisions it, you could one day go to its search engine, type in a certain bon mot, and find this book, your book. Because it's still under copyright, Google would only show you a few sentences around your search term as it appeared in the text, not the whole volume; but you'd know it was there in the library, and if you wanted it, you'd be free to check it out, or find some way to buy it. Without Google's system, you'll never hear of this book.
In such a scenario, proponents of Google's plan see nothing but good — good for the company, for Internet users, and especially for authors. In most copyright disputes between content companies and tech firms, there is often a legitimate question over which party might benefit more from a new technology, notes Fred von Lohmann, an attorney at the Electronic Freedom Foundation, which sides with Google in this battle. “Take the Napster case,” von Lohmann says. In that situation, Napster claimed that its file-swapping tool could increase CD sales by letting people preview music before they purchased it; the CD industry, meanwhile, said the system had caused a significant drop in sales. Both sides cited numbers to support their arguments, and each theory sounded at least plausible.
“But with the Google Print situation, it's a completely one-sided debate,” von Lohmann says. “Google is right, and the publishers have no argument. What's their argument that this harms the value of their books? They don't have one. Google helps you find books, and if you want to read it, you have to buy the book. How can that hurt them?”
Obscure books — books that are out of print or otherwise hard to get ahold of — would stand to gain the most from such a system, and it turns out that there are plenty of such books in the libraries Google plans to scan. Not long ago, the Online Computer Library Center, a nonprofit library research group, set out to count and catalog the books Google would capture in its project. The OCLC determined that at the five research libraries with which Google had formed deals, about 80 percent of the books in the stacks were published after 1923 and still under copyright. But only a small number of these books are currently in print.
Tim O'Reilly, a computer book publisher and sponsor of influential tech conferences, points out that in 2004 only 1.2 million different book titles were sold in the United States, according to Nielsen Bookscan. This means that while a significant number of library books are protected by copyright, they are also out of print — 70 percent or more, O'Reilly estimates. These books, he says, represent the “twilight zone” of the publishing world; someone owns them, but since they're perceived to have no commercial value (because they're no longer sold in stores), publishers don't have any incentive to promote and market them, let alone to go through the expense of scanning them and making them searchable online.
Indeed, in many cases the publishers and rights-holders of these books are unknown. There is no national registry of copyright holders in the United States, as there is a national registry of patents. Any book published is automatically granted a copyright, and if a book publisher goes out of business, or an author dies, the copyright to the work may well be buried in contracts that long ago turned to dust. “We precluded any possibility of creating a copyright database,” says Vaidhyanathan, and “it's impossible for a company like Google, or a historian, or a documentary filmmaker, or anyone to find out who owns what. Even publishers don't know what they own. It's just impossible.”
O'Reilly is one of few publishers who support Google's plan, and he likes it precisely because he thinks it will shed light on these little-known titles whose rights-holders are hard to track down. “One of the biggest arguments for Google's approach is that it is the only solution that solves a hard problem,” O'Reilly says. He points out that only 2 percent of books sold in 2004 had more than 5,000 copies purchased; the rest languished in obscurity. And that, he wrote in a recent New York Times Op-Ed, “is a far greater threat to authors than copyright infringement, or even outright piracy.” Google, O'Reilly went on to write, “promises an alternative to the obscurity imposed on most books. It makes that great corpus of less-than-bestsellers accessible to all. By pointing to a huge body of print works online, Google will offer a way to promote books that publishers have thrown away, creating an opportunity for readers to track them down and buy them ... In one bold stroke, Google will give new value to millions of orphaned works.”
But if it's true that Google's new system would be good for old books, it's also true that the system would be a good one for Google, helping to cement its position as the world's dominant search engine. Nobody knows — and Google isn't saying — how much money the company stands to make directly from the library venture. In a recent Op-Ed in the Wall Street Journal, Eric Schmidt, Google's CEO, sought to play down the company's profit motive. He pointed out that the company will not place advertisements on search pages for books it scans from libraries; and though Google will place ads on pages for books that publishers have given the company permission to include, it will send publishers the “majority” of revenue for such ads, Schmidt wrote. Google will include a referral link to let people purchase books they find in the library — a “Buy this book” link to several major online bookstores — but the company won't “make a penny on referrals,” he wrote.
Rather than making money from the individual book searches, Google's library will pad Google's bottom line by increasing the value of its main search engine. Although Google remains by far the world's most popular search engine, it faces stiff competition from other firms — Yahoo, Microsoft, Amazon and others — who want a share of its vast audience, and are also planning ventures to digitize and offer search systems for print books and other media. By offering something — millions of books — that others are not yet offering, Google will be creating another reason for users to stick with its interface for searching the Web.
But Google's competitors are not far behind; Amazon, which already offers a feature to search inside many books in its store, has just announced a plan to let users buy specific pages of books. Microsoft and Yahoo, meanwhile, have joined the Open Content Alliance, a nonprofit group that includes contributions from the Internet Archive and the University of California at Berkeley, and that plans to digitize books only after asking for publishers' permission.
It's Google's profit motive that raises the suspicion of authors and publishers. As they see it, digital technology provides authors and publishers a new way to make a great deal of money on their back catalogs of books — a huge source of revenue that is currently being untapped. Google is creating a system that exploits that back catalog, so why shouldn't Google pay content owners for the right use of that catalog?
“The author is creating the value here,” says Paul Aiken, executive director of the Authors Guild, “and the author should get some of the money. If there's a new value for books created on the Internet, the authors should be given new incentives to create works for it.”
Aiken compares Google's plan to use books with the way Hollywood uses novels as plots for its movies. When film producers first started making movies from books, “They could have said, 'Hey, how does it hurt the author if I make a movie from his book?'” Aiken points out. “You could argue, after all, that more people would buy the book because of the movie.” But that's not the way the world works, Aiken says. Hollywood pays publishers for the rights to novels they want to use, and in the same way, Google should pay publishers — who would then distribute money to authors — for the right to add books to its database. Aiken declined to offer a detailed, specific plan by which Google could pay authors for their contributions to its search engine. But he suggested one idea might look very much like the system that radio stations use to pay musicians. Google could pay an annual licensing fee to publishers, and the money would be distributed to publishers and authors according to how often those books were viewed in the search engine.
Aiken's argument is echoed by publishers. Google, notes Pat Schroeder — the former Democratic congresswoman from Colorado who now heads the Association of American Publishers — is rich! Both Schroeder and Aiken fingered Google's latest earnings report, which showed that the company recorded a 700 percent increase in profits in the third quarter compared with the same quarter last year. In 2004, the company's revenues exceeded $3 billion, and the firm could make double that much by the end of the current fiscal year. In other words, Google is sitting on a gold mine, and authors and publishers, notably, are not. “They try to sound like they have this high moral purpose so they can't be bothered with permission,” Schroeder says of Google. “They tell us it's good for the world, and it's good for publishers. The thing they leave out is it's really good for Google.”
The Authors Guild hasn't conducted a survey of its members to determine what they think of the Google plan, but Aiken says the e-mails he gets from authors run overwhelmingly in support of the Guild's lawsuit against the company. There's no reason not to believe Aiken; it's not hard to find authors who are deeply suspicious of what Google plans to do. Take Peter Salus, a veteran author of computer books who lives in Toronto. Salus has authored, co-authored or edited about two dozen books, some of which are in print, and some of which are not. He says that he understands the benefits of Google Print — but he just wants the company to do one thing in return: ask his permission.
“I think it's absurd that they think the authors should have to come to them to opt out of the database,” rather than the other way around, Salus says. Because Google's project directly benefits from his and his fellow authors' work, Salus says, it's incumbent upon the company to make sure that authors are O.K. with what it's doing. And what if it's too logistically difficult for Google to find every author of every book in the library and ask his or her permission? “That's tough — it really breaks my heart,” he says. “But there is no burden on me or anybody else to make it easier for them to make money.”
Many authors feel differently. One is Julian Dibbell, author of “My Tiny Life,” a memoir of the author's life in the virtual computer world called LambdaMOO. When told of Aiken's theory that Google's database would use authors like him in the same way that Hollywood might use them, and authors should get paid for allowing their books to go to Google, Dibbell said, “My blood is boiling just as you relay this to me.” As Dibbell sees it, “Google is not piggybacking on my creative effort in the same parasitic way that a movie based on a novel might be doing.” To Dibbell, Google is acting not like the Hollywood producer who steals an author's ideas, but instead like a book reviewer who popularizes an author's work. After all, Dibbell notes, book reviewers routinely use snippets from books in their reviews, and magazines and newspapers make loads of money from advertisements they run alongside book reviews. Authors don't feel entitled to any of that money, he says, so why should they get a slice of the money Google will make from its service? “Given what's at stake here, which is the creation of a resource that nobody is denying is a good thing, their stance seems wrong to me,” Dibbell says of his fellow authors.
Whether Google is acting more like a book reviewer or like a movie producer in its use of other people's books may turn out to be a key question in the legal battle to come. Google, which did not make a company attorney available to Salon, has insisted that, as with book reviewers, copying books falls within the “fair use” exception of American copyright law. Google essentially argues that because it is copying books as a step toward a larger goal — the creation of a search engine of library books — its actions are permitted. After all, the company points out, it does exactly the same thing with Web pages. To create a searchable index, the Google Web search engine copies entire Web sites — all of Salon, for instance, resides in Google's servers — without their permission. If copying a Web site is OK, why is copying a book not?
In his Wall Street Journal editorial, Google CEO Schmidt defended the company's legal interpretation. “The aim of the Copyright Act is to protect and enhance the value of creative works in order to encourage more of them — in this case, to ensure that authors write and publishers publish,” he wrote. “We find it difficult to believe that authors will stop writing books because Google Print makes them easier to find, or that publishers will stop selling books because Google Print might increase their sales.”
Fred von Lohmann of the EFF agrees with Google's view of the law, and he says that several federal court rulings uphold what Google is doing. Courts have already ruled, for instance, that it's OK for companies to make copies of video games as part of their efforts to reverse-engineer those video games; because the copied video games weren't meant to be sold, and were instead used for some other purpose (the creation of a reverse-engineered product), the copies were considered fair use. Then there's Kelly v. Arriba Soft, a 2002 case in which a judge ruled that it was legal for a search engine company to copy photographs from other sites online and display “thumbnails” of those photos as part of its search results. The thumbnails, the court said, were quite different from the original photographs — they were smaller and of lower resolution — and were unlikely to be used for the same purposes as the originals.
A similar argument can be made on behalf of Google's book search engine, von Lohmann points out. Google is not giving readers the exact copy of the books it scans from the library; rather, it's just giving them a snippet in the same way that a graphical search engine may show users a thumbnail image of a picture.
But if there are cases that support Google's view of copyright law, there are also federal court cases that line up against it. The main case involves MP3.com, a boom-time Internet company that copied tens of thousands of CDs to its internal database without getting record labels' permission to do so. (MP3.com planned to make digital tracks of songs available to anyone who could prove they'd purchased a physical CD of the music.) In 2000, a federal judge in New York ruled that MP3.com's copying of CDs without permission infringed upon the record labels' copyrights. A reasonable judge may look at Google's actions as being essentially no different; just as MP3.com copied CDs without asking, so too is Google copying books.
Both authors and publishers sued Google in the Southern District of New York, where the MP3 case is still an important legal precedent; the choice of locale, says Vaidhyanathan, was not an accident. “They picked the court that is likely to rule along the lines of the MP3.com case, and less likely to think that Kelly v. Arriba Soft was a good decision,” he says.
Aiken of the Authors Guild, for one, is sanguine about his lawsuit's prospects. “I don't think if you were to survey copyright lawyers you'd find their view prevailing,” he says of Google. “Our case is very, very strong. It would shock the copyright bar if it was decided against us.” Still, both Aiken and Schroeder say are were open to settlement discussions with Google. “There's a lawsuit,” says Aiken, “but if they wanted to negotiate a license we could work something out.”
Google has not yet filed a legal response in either case, and it's unclear whether the company is open to a settlement. But several observers say Google may also be inclined to think about sitting down with the authors and publishers and talking about the case, including discussing a possible permission-based system for getting books into its library. For one thing, Google wouldn't want to risk losing in this case, says Vaidhyanathan, as a badly worded ruling in this case could put its other operations in legal jeopardy.
O'Reilly says that he was recently at an event sitting between Larry Page, one of Google's co-founders, and John Sargent, who sits on the board of the AAP. “I'm not going to tell you what they said,” O'Reilly says, “but I think it's fair to characterize what they're doing now as negotiating by lawsuit and press release.” Each side is hoping for some early legal decisions to go its way, O'Reilly says, and then the real settlement talks will begin.
But whatever happens with Google's venture, a more lasting outcome from this case may be a change in the way we think about how much control an author or publisher, musician or record label, filmmaker or studio, is allowed to exert over works they create — a question that has been cast into stark relief in the digital age.
Lawrence Lessig, a Stanford law professor and copyright scholar, likes to tell the story of Thomas Lee and Tinie Causby, two North Carolina farmers, who in 1945 cast themselves at the center of a case that would redefine how society thought of physical property rights. The immediate cause of the Causbys' discomfort was the airplane; military aircraft would fly low over their land, terrifying their chickens, who flew to their death into the walls of the barn. As the Causbys saw it, the military aircraft were trespassing on their land. They claimed that American law held that property rights reached “an indefinite extent, upwards”; that is, they owned the land from the ground to the heavens. If the government wanted to fly planes over the Causbys' land, it needed the Causby's permission, they insisted.
The case, in time, came to the Supreme Court, where Justice William O. Douglas, writing for the Court, was not kind to the Causbys' ancient interpretation of the law. Their doctrine, he said, “has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.”
Google supporters say the publishers' objection rings similar to that of the Causbys'. Just as the airplane rendered the Causbys' rights to the skies incompatible with the modern world, the Web has rendered publishers' right to the digital universe out of tune with modern technology and society. The public benefit of making millions of books, or excerpts of books, readily available to people worldwide “could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries,” Lessig wrote recently on his blog. “It is an astonishing opportunity to revive our cultural past, and make it accessible. Sure, Google will profit from it. Good for them. But if the law requires Google (or anyone else) to ask permission before they make knowledge available like this, then Google Print can't exist.” And if Google Print can't exist, maybe it's time to reexamine the law.[/quote]
Christopher T. Heun for InternetWeek wrote:
Courts Unlikely To Stop Google Book Copying
Despite objections from publishers and writers, copyright law appears to be on Google's side, legal experts say. The social value of Google's initiative to digitize library books, including those protected by copyright, will likely weigh heavily in the search engine's favor.
Should the growing number of publishing groups, who oppose the plan by Google Inc. to digitize the collections of some of the world’s major libraries, fail to reach an agreement and turn instead to the courts, they may have a tough road ahead of them.
Although Google may appear to violate the law by scanning, without permission, entire copies of books protected by copyright, such an act is not illegal if it is considered “fair use” of the material. How a court interprets that doctrine will decide the fate of the company’s ambitious plans, according to lawyers and law professors with knowledge of intellectual property and copyright statues. They say the most important issues for a court would be the character of Google’s activity, its adverse economic impact on the copyright holder, and the amount of material it uses in proportion to the whole and if that is key to the work. Of lesser concern is whether the company makes a reasonable effort to contact copyright holders before copying their books.
“Google would probably win” a court case, says William Fisher, who teaches intellectual property law at Harvard Law School and is the director of the Berkman Center for Internet and Society. “Google is a profit-making venture, that counts against it, but what it is doing is a highly socially valuable activity and that counts highly in its favor.”
A potential legal battle is slowly gathering strength. The Text and Academic Authors Association this week joined the Association of Learned and Professional Society Publishers in publicly stating it is ready to take on Google in the courtroom.
The two sides are playing a game of chicken over who should dictate what works are digitized: Google says it will not scan any titles publishers tell it not to; publishers insist it should work the other way around. “The solution we’d like to see [Google] heading toward is to say here is a list of books we’d like to include, may we have permission to do so,” says Peter Givler, the executive director of the Association of American University Presses. The scanning has stopped temporarily but will resume in November.
One law professor doesn’t think that’s necessary. “The principle that Google should have to ask [for permission] is proving untenable,” says Jessica Litman, a professor at Wayne State University Law School who has published a book on protecting intellectual property on the Internet, “Digital Copyright.” “The opt-out mechanism is pretty reasonable.” The source of the squabble is the Google Print Library Project, which aims to scan and store in the company’s search database copyrighted books from the libraries of Harvard, Stanford, the University of Michigan, the University of Oxford and the New York Public Library. Google’s ultimate goal, according to its Web site, is to build a “comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers find new readers.”
If a work included in a search query is covered by a copyright, Google limits the amount of text shown to a few sentences adjacent to the search term; the full text is available for any book with an expired copyright now considered public domain – for instance, a novel published in 1905.
Sounds fair enough. But publishers don’t see it that way. They look at the library project not as an altruistic endeavor but a profit-making venture that will harm their own business. As proof they point out that Google, which relies on advertising for the vast majority of its revenue – a record $1.4 billion for the quarter that ended June 30 – allows sponsored links on the search results page for Google Print. It’s enough to make them wonder: if one search engine can appropriate a publisher’s intellectual property, then isn’t it logical to assume that others, like Yahoo! and Microsoft, will be next?
“If copyright law worked the way Google would like to see it working, then everyone in the world would be able to use the material unless the copyright holder explicitly told them not to, and even then it would be OK,” says Allan Adler, the vice president for legal and government affairs for the Association of American Publishers. “That would be a very strange copyright system.”
Regardless, there is a clear legal precedent for any potential court battle between publishers and Google, and it favors the Mountain View, Calif., company. In Kelly v. Arriba Soft Corp., a 2003 case in which a photographer sued a search engine, claiming copyright infringement for displaying thumbnail images of work originally posted on his site, the Ninth Circuit found in favor of the search engine: the act of copying the material, even though it was for commercial purposes, was not exploitative and therefore was fair use.
“Everything the Ninth Circuit stated with respect to Arriba applies with equal force to the Print Library Project,” Jonathan Band, a copyright lawyer in Washington, D.C., who represents Internet companies and library associations on intellectual property matters, wrote recently in a copyright analysis of the dispute. Google’s copies of books will not replace the originals, and the company does not profit from the sale of any books it scans, he wrote. Band does not represent any entity with respect to the Google Print project.
“The Google Print Library Project will make it easier than ever before for users to locate the wealth of information buried in books,” Band concluded. “By limiting the search results to a few sentences before and after the search term, the program will not conflict with the normal exploitation of works nor unreasonably prejudice the legitimate interests of rights holders. To the contrary, it will often increase demand for copyrighted works.”
For further legal precedent, David Donahue, an associate at Fross Zelnick Lehrman & Zissu, a New York firm that specializes in trademark, copyright and unfair competition law, cites two cases involving the distribution of photocopies of articles from scientific and medical journals.
In American Geophysical Union vs. Texaco Inc., the Second Circuit Court of Appeals found in 1994 that a private company did not have the right to photocopy entire works and hand them out to its research staff. But in Williams & Wilkins Co. vs. The United States Records, an equally divided Supreme Court affirmed a lower court’s decision that it was fair use for a library to photocopy research journals and distribute them. “Google lies somewhere in between those two cases,” Donahue says.
Complicating the debate over copyright is the fact that publishers often don’t even know who has it. Their records can be incomplete, particularly if an author is deceased, in which case an estate or family member could hold the rights. A book with an unknown copyright status is known as an “orphan work.” Most works published prior to 1923 are now in the public domain, because the term of protection, the life of the author plus 70 years, is likely over. Conversely, works published in the last 30 years or so probably have an ISDN number and are tracked through a database, “so there should be little question about who holds the copyright,” Adler says. The tough part is determining the status of books published in those five decades in between. “Were talking about millions of books,” he says. “Orphan works are not in the public domain.”
The Copyright Office, at the request of Congress, has studied the “orphan works” issue and should publish its recommendations later this year, which will likely be passed into law. Publishers believe that copyright holders of orphan works, should they eventually make a claim, are entitled to a reasonable compensation, but Google using their works in the meantime shouldn’t be treated as infringement, as long as the company makes an honest effort to find them.
By now, lawsuits shouldn’t faze Google. Agence France-Presse, angry that its content appears in search results, filed a $17.5 million copyright infringement in March; adult magazine publisher Perfect 10 Inc. is asking a federal court in Los Angeles to prevent Google from displaying pictures and links to the company’s copyrighted photos; and two companies have sued Google over its practice of keyword advertising.
In the end, winning a fair use argument against Google could be tough, since its entire business model revolves around the principle. “Google couldn’t exist at all without making copies,” Litman says. “It’s a search engine. It makes copies in order to index content.
: Textbook Publishers Are Bluffing In Battle With Google
[quote=" GAVIN BAKER“]Copyright shouldn't silence creativityI was unhappy to see Wednesday's article claiming note-taking services may violate professors' copyrights.
Unfortunately, this is meritless sword-rattling from a disgruntled professor and nothing more.
A brief background: Copyright is a system of government protection granted for original creative works. For example, copyright applies to books, music and videos. Copyright grants exclusive control over certain uses of the work, such as modification and redistribution, for a limited time. The system was designed in the Constitution as a way to incite creation and ”promote the progress of science and useful arts.“
Professor Laurence Alexander's claims of copyright are invalid because copyright only applies to works fixed ”in a tangible medium of expression.“ An instructor's spoken explanations are ephemeral and in no way fixed in a tangible medium.
Alexander also complains that notes copy ”facts, theories and concepts that the professor has learned and studied.“ However, as the U.S. Copyright Office's Web site explains, mere ”ideas, ... concepts, principles“ and the like are explicitly ineligible for copyright.
If note-taking companies copied a professor's every word or engaged in wholesale copying of a textbook, a claim could be made for copyright violation. But that's not what these companies do.
What note-taking companies such as Einstein's Notes and Smokin' Notes do is summarize. Summary is not, and never has been, a violation of copyright. Despite what Alexander may claim, note-takers are indeed contributing value when they summarize lecture material and organize concepts into learning aids.
Copyright law has always recognized summary as a valid derivative work protected as a fair use under law, as it should.
What's next in the copyright crusade - Cliff's Notes? Movie reviews? Book reports?
The very same law that allows scholarly quotation, commentary and criticism protects note-takers, even if they make money without paying the professors extra. When was the last time you paid an author whose paper you cited?
The free flow of information is essential in a democratic society. The ability to summarize, quote or report the words of another person, without asking anyone's permission or paying any royalty, is key to ensuring a free exchange of thoughts.
Furthermore, even if the law allowed professors to prosecute note-takers, they should not. Legal rights do not always equate with moral rights. Everyone should abhor the use of copyright as a bludgeon to silence speech and creativity.
Unfortunately, copyright and other so-called ”intellectual property" laws are used precisely in this manner time and again. The shift from viewing copyrights as the limited monopolies they are to seeing them as a form of property is dangerous, unprecedented and extreme.
If the world is to remain free to create and communicate, copyright law must retain its balances and protections. Copyright serves an important purpose in providing incentives for creators. However, we must remember its ultimate purpose and ensure that its exclusive rights do not come before the public good.
Academics, of all people, should support a view of copyright that encourages the dissemination of information - the primary purpose of a university. Threatening companies that produce educational aids is poor behavior for an institution that exists to educate.
Gavin Baker is a former Alligator writer and the president of Florida Free Culture, a student group that works to reform copyright law.
http://www.alligator.org/pt2/051103column.php[/quote]
Publishers Must Repay The People For Securing Free Speech
This article has an excellent, thoughtful discussion of the Google Print project. After this, I think the most important legal doctrine that needs debunking is the idea that Google's scanning and searching project constitutes the creation of a “Derivate Work” entitled to copyright protection, as argued by the Writer's Guild representative. The correct description of Google Print is that it is a “compilation” that has unusual, searchable depth. It is a massive card catalog that doesn't usurp, overshadow, or unduly exploit the author's creative efforts; rather, it makes it more accessible.Google Print does not in any way resemble the process of making a screenplay or movie based on a novel's plot. We should note first that plots are constitute an uncopyrightable “idea,” as Romeo and Juliet illustrates — no one owns the story of Star-Crossed Lovers, which is at the heart of Westside Story and many other dramatic works. Thus, the WG is off-base in suggesting that Hollywood isn't free to reuse “plots.” However, turning a book into a screenplay does create a derivative work, something that only the author is free to do without a license. But Google is obviously not doing this — they're just copying and compiling and making accessible to search.
Second, Google Print is performing an incredibly important archival function that the Publishing Monopolists have neglected — preserving their archive of out-of-print books. Apparently, 70% of the books still protected by copyright (everything published after 1023, thanks to the Sonny Bono Copyright Extension Act of 2002) are OUT OF PRINT! That is to say, turning into dust. The loss of knowledge will be huge if these aren't scanned, but the Publishing Lobby has no desire to do that — they're busy trying to crank out another one-hit-wonder using mass-hypnotism techniques that seem to have lost their effect.
Third, that there may be a financial reward for Google is a red herring. We do not punish success, nor do we scoop cream off of Google's dessert because the Media Monopolists can't seem to play their own game. Google may well make money on the Google Print project, but that has yet to be established, and if Google engages in contributory infringement or aiding and abetting piracy, it will be sued for infringement, and get sued under valid existing law approved by the Supremes in the Grokster decision. (See my post on that topic.) But Google is not selling its catalog, it is making it available for use. The content is simply not being tapped for its value in a way that copyright law was intended to protect. Rather, it is expanding the means in which the public can make “fair use” of material that exists first and foremost because the People of the USA champion Freedom of the Press. Now it's time for the Press to pay us back in gold for all the blood, sweat and tears it took to secure that Freedom.
[quote="Farhad Manjoo in Der Spiegel“]Throwing Google at the Book
Google's new search engine of books puts a world of knowledge at our fingertips. Publishers say the Internet giant is robbing them of their rightful fees. Maybe it's time to call copyright laws history.
A page from ”Transatlantic Sketches,“ a European travelogue by 19th century American author Henry James, that is part Google's new project to scan the world's most important texts.
Just the announcement last December elicited a thrill. Google, the young oracle that brought order and sense to the World Wide Web, now planned to take on the printed word, reaching into major university libraries to scan and digitize all the knowledge contained in books. The company promised to make every printed book as accessible as a Web site, allowing anyone with Internet access to search through every page on every book for any particular word or phrase. Google had signed deals allowing it to scan millions of books at Stanford, the University of Michigan, Harvard, Oxford and the New York Public Library. So ambitious was the effort that its only real analogues were the stuff of legend and fiction: the lost library at Alexandria and Jorge Luis Borges' fantastical Library of Babel. On hearing of Google's effort, one librarian told the New York Times, ''Our world is about to change in a big, big way.”
A year later, Google's grand plan to digitize the world's books still seems as fantastical as it did when it was first proposed. Earlier this year, the company started scanning books at libraries, and on Nov. 3 launched an elegant beta version of its book search engine — but the project faces an uncertain future.
At issue is copyright law: Does Google have the legal right to copy library books and make them searchable online? Trade groups for authors and publishers say no. In September, the Authors Guild, a professional society of more than 8,000 writers, filed suit against Google to stop the scanning project; in October, the Association of American Publishers, which represents large publishing houses, also sued. Both groups charge that Google, which does not plan to ask authors and publishers for permission before it scans their books, would engage in massive copyright infringement — and also cost the book industry a great deal of potential revenues — if it goes ahead with its effort.
Google insists that its project is legal, as it would only offer snippets — one or two sentences — of copyrighted works that publishers had not given the company permission to scan. It also argues that its plan would boost, not reduce, book sales, and would be a boon to the book industry. But its quest to bring books to the Web now looks certain to spark a major courtroom battle, and it's a battle that Google, however deep its pockets and well-remunerated its lawyers, is not guaranteed to win.
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Salon.com
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Salon.com
“One of the great things about this conflict is it points out the absurdity of American copyright law,” says Siva Vaidhyanathan, a media scholar and copyright expert at New York University. Vaidhyanathan believes that what Google wants to do may well be illegal under today's copyright regime. At the same time, he notes that Google can't really create a system that relies on publishers' granting permission to digitize their books, namely because nobody really knows who owns the rights to all the books in the library. So, Vaidhyanathan says, Google is stuck; scanning books without asking permission may be illegal, and scanning books after asking permission is impractical to the point of impossibility.
But if copyright law stands in the way of Google's grand aim, isn't it time we thought about changing the law? That's the most salient question raised in the fight over Google's effort to build a digital library. The company — and the host of other firms that will surely follow in its path — is poised to create a tool that could truly change the way we understand, and learn about, the world around us. A loss for Google would echo throughout the tech industry, dictating not just how we use technology to improve books but also how other media — movies, music, TV shows and even Web pages — are indexed online. Can we really afford to let content owners stand in the way of Google's revolutionary idea?
In response to the legal uncertainty, Google put its scanning project on hold for several months in the summer, but it has now resumed the project. Last week, the company put its first stash of scanned library books online. Diving into this trove is a trip. You could easily lose days in Google's digital labyrinth, not unlike the way you might walk into the stacks at Stanford or Harvard on a Friday and emerge punch-drunk on a Sunday, amazed by the breadth of the work you've seen. The difference is that Google's library is searchable; you can find what you want not just by looking up an author or a Dewey Decimal subject, but also by typing a particular phrase or quote — “the play's the thing,” say, or “Let my people go!” — that you're looking for in a book. Google will look for your search term in every page of every volume in the library, and instantly show you images of the pages in each book where the phrase appears.
At the moment, Google's library mostly contains a trove of work published before 1923; copyrights on these books have expired, and the books' contents, therefore, are in the public domain, free for anyone to use in any way. Amid these titles you'll find all manner of books in Google's stash: Among many other things, there's an illustrated first edition of Henry James' “Daisy Miller,”; a 1702 history of France with an exceedingly long title; “Debates of the House of Commons, 1667 to 1694,” which records a certain Mr. Finch arguing against the naturalization of aliens; and this 1785 gardening book, which advises farmers to plant hedges of holly around their corn, since “Holly does not fuck the land,” and therefore rob the corn of nutrients. (It's possible, though, that this last one is actually “suck the land,” and that Google's text-recognition program made a mistake with the old script.)
Google's collection also includes a vast number of books published after 1923 that publishers have already given Google permission to include — but because these books are under copyright, Google limits their functionality in order to reduce the chance that the service will negatively affect book sales. For instance, searching for the name Calliope in Jeffrey Eugenides' “Middlesex” will yield several page numbers but not the content of all those pages. That way you can't read the entire book through the search interface.
The main fight between Google and publishers involves a third category of books, those that are still under copyright but that publishers have not given Google permission to include in its library. When Google, in the course of scanning books at a library, comes upon a book published after 1923, publishers insist that the company should set it aside and get permission first; Google says that it has the right to scan these books and make them available online. The company insists that it will soon include such books in its library.
At the moment, though, what this means for you is a truncated library. Right now, no text search in Google will return any phrases contained in many popular titles. For instance, you can't find such titles as “Lolita,” “The Great Gatsby,” “The Best and the Brightest,” “The Da Vinci Code,” or much of anything by John Updike, Philip Roth, Richard Feynman, John McPhee, Shelby Foote, Terry McMillan, Sharon Olds, Julia Child and Woody Allen.
This is most problematic for obscure books, books you don't know you're looking for. Take this hypothetical scenario: Let's say that somewhere in the stacks at the University of Michigan there is an essay by a writer you've never heard of, on a subject you didn't know about, in a volume no longer in print, by a publishing house no longer in business; let's say, moreover, that even though you don't really know it, this essay is exactly what you're looking for, the answer to all your searching needs, in much the same way you find Web pages every day by people you don't know that turn out to be just the thing. Ideally, as Google envisions it, you could one day go to its search engine, type in a certain bon mot, and find this book, your book. Because it's still under copyright, Google would only show you a few sentences around your search term as it appeared in the text, not the whole volume; but you'd know it was there in the library, and if you wanted it, you'd be free to check it out, or find some way to buy it. Without Google's system, you'll never hear of this book.
In such a scenario, proponents of Google's plan see nothing but good — good for the company, for Internet users, and especially for authors. In most copyright disputes between content companies and tech firms, there is often a legitimate question over which party might benefit more from a new technology, notes Fred von Lohmann, an attorney at the Electronic Freedom Foundation, which sides with Google in this battle. “Take the Napster case,” von Lohmann says. In that situation, Napster claimed that its file-swapping tool could increase CD sales by letting people preview music before they purchased it; the CD industry, meanwhile, said the system had caused a significant drop in sales. Both sides cited numbers to support their arguments, and each theory sounded at least plausible.
“But with the Google Print situation, it's a completely one-sided debate,” von Lohmann says. “Google is right, and the publishers have no argument. What's their argument that this harms the value of their books? They don't have one. Google helps you find books, and if you want to read it, you have to buy the book. How can that hurt them?”
Obscure books — books that are out of print or otherwise hard to get ahold of — would stand to gain the most from such a system, and it turns out that there are plenty of such books in the libraries Google plans to scan. Not long ago, the Online Computer Library Center, a nonprofit library research group, set out to count and catalog the books Google would capture in its project. The OCLC determined that at the five research libraries with which Google had formed deals, about 80 percent of the books in the stacks were published after 1923 and still under copyright. But only a small number of these books are currently in print.
Tim O'Reilly, a computer book publisher and sponsor of influential tech conferences, points out that in 2004 only 1.2 million different book titles were sold in the United States, according to Nielsen Bookscan. This means that while a significant number of library books are protected by copyright, they are also out of print — 70 percent or more, O'Reilly estimates. These books, he says, represent the “twilight zone” of the publishing world; someone owns them, but since they're perceived to have no commercial value (because they're no longer sold in stores), publishers don't have any incentive to promote and market them, let alone to go through the expense of scanning them and making them searchable online.
Indeed, in many cases the publishers and rights-holders of these books are unknown. There is no national registry of copyright holders in the United States, as there is a national registry of patents. Any book published is automatically granted a copyright, and if a book publisher goes out of business, or an author dies, the copyright to the work may well be buried in contracts that long ago turned to dust. “We precluded any possibility of creating a copyright database,” says Vaidhyanathan, and “it's impossible for a company like Google, or a historian, or a documentary filmmaker, or anyone to find out who owns what. Even publishers don't know what they own. It's just impossible.”
O'Reilly is one of few publishers who support Google's plan, and he likes it precisely because he thinks it will shed light on these little-known titles whose rights-holders are hard to track down. “One of the biggest arguments for Google's approach is that it is the only solution that solves a hard problem,” O'Reilly says. He points out that only 2 percent of books sold in 2004 had more than 5,000 copies purchased; the rest languished in obscurity. And that, he wrote in a recent New York Times Op-Ed, “is a far greater threat to authors than copyright infringement, or even outright piracy.” Google, O'Reilly went on to write, “promises an alternative to the obscurity imposed on most books. It makes that great corpus of less-than-bestsellers accessible to all. By pointing to a huge body of print works online, Google will offer a way to promote books that publishers have thrown away, creating an opportunity for readers to track them down and buy them ... In one bold stroke, Google will give new value to millions of orphaned works.”
But if it's true that Google's new system would be good for old books, it's also true that the system would be a good one for Google, helping to cement its position as the world's dominant search engine. Nobody knows — and Google isn't saying — how much money the company stands to make directly from the library venture. In a recent Op-Ed in the Wall Street Journal, Eric Schmidt, Google's CEO, sought to play down the company's profit motive. He pointed out that the company will not place advertisements on search pages for books it scans from libraries; and though Google will place ads on pages for books that publishers have given the company permission to include, it will send publishers the “majority” of revenue for such ads, Schmidt wrote. Google will include a referral link to let people purchase books they find in the library — a “Buy this book” link to several major online bookstores — but the company won't “make a penny on referrals,” he wrote.
Rather than making money from the individual book searches, Google's library will pad Google's bottom line by increasing the value of its main search engine. Although Google remains by far the world's most popular search engine, it faces stiff competition from other firms — Yahoo, Microsoft, Amazon and others — who want a share of its vast audience, and are also planning ventures to digitize and offer search systems for print books and other media. By offering something — millions of books — that others are not yet offering, Google will be creating another reason for users to stick with its interface for searching the Web.
But Google's competitors are not far behind; Amazon, which already offers a feature to search inside many books in its store, has just announced a plan to let users buy specific pages of books. Microsoft and Yahoo, meanwhile, have joined the Open Content Alliance, a nonprofit group that includes contributions from the Internet Archive and the University of California at Berkeley, and that plans to digitize books only after asking for publishers' permission.
It's Google's profit motive that raises the suspicion of authors and publishers. As they see it, digital technology provides authors and publishers a new way to make a great deal of money on their back catalogs of books — a huge source of revenue that is currently being untapped. Google is creating a system that exploits that back catalog, so why shouldn't Google pay content owners for the right use of that catalog?
“The author is creating the value here,” says Paul Aiken, executive director of the Authors Guild, “and the author should get some of the money. If there's a new value for books created on the Internet, the authors should be given new incentives to create works for it.”
Aiken compares Google's plan to use books with the way Hollywood uses novels as plots for its movies. When film producers first started making movies from books, “They could have said, 'Hey, how does it hurt the author if I make a movie from his book?'” Aiken points out. “You could argue, after all, that more people would buy the book because of the movie.” But that's not the way the world works, Aiken says. Hollywood pays publishers for the rights to novels they want to use, and in the same way, Google should pay publishers — who would then distribute money to authors — for the right to add books to its database. Aiken declined to offer a detailed, specific plan by which Google could pay authors for their contributions to its search engine. But he suggested one idea might look very much like the system that radio stations use to pay musicians. Google could pay an annual licensing fee to publishers, and the money would be distributed to publishers and authors according to how often those books were viewed in the search engine.
Aiken's argument is echoed by publishers. Google, notes Pat Schroeder — the former Democratic congresswoman from Colorado who now heads the Association of American Publishers — is rich! Both Schroeder and Aiken fingered Google's latest earnings report, which showed that the company recorded a 700 percent increase in profits in the third quarter compared with the same quarter last year. In 2004, the company's revenues exceeded $3 billion, and the firm could make double that much by the end of the current fiscal year. In other words, Google is sitting on a gold mine, and authors and publishers, notably, are not. “They try to sound like they have this high moral purpose so they can't be bothered with permission,” Schroeder says of Google. “They tell us it's good for the world, and it's good for publishers. The thing they leave out is it's really good for Google.”
The Authors Guild hasn't conducted a survey of its members to determine what they think of the Google plan, but Aiken says the e-mails he gets from authors run overwhelmingly in support of the Guild's lawsuit against the company. There's no reason not to believe Aiken; it's not hard to find authors who are deeply suspicious of what Google plans to do. Take Peter Salus, a veteran author of computer books who lives in Toronto. Salus has authored, co-authored or edited about two dozen books, some of which are in print, and some of which are not. He says that he understands the benefits of Google Print — but he just wants the company to do one thing in return: ask his permission.
“I think it's absurd that they think the authors should have to come to them to opt out of the database,” rather than the other way around, Salus says. Because Google's project directly benefits from his and his fellow authors' work, Salus says, it's incumbent upon the company to make sure that authors are O.K. with what it's doing. And what if it's too logistically difficult for Google to find every author of every book in the library and ask his or her permission? “That's tough — it really breaks my heart,” he says. “But there is no burden on me or anybody else to make it easier for them to make money.”
Many authors feel differently. One is Julian Dibbell, author of “My Tiny Life,” a memoir of the author's life in the virtual computer world called LambdaMOO. When told of Aiken's theory that Google's database would use authors like him in the same way that Hollywood might use them, and authors should get paid for allowing their books to go to Google, Dibbell said, “My blood is boiling just as you relay this to me.” As Dibbell sees it, “Google is not piggybacking on my creative effort in the same parasitic way that a movie based on a novel might be doing.” To Dibbell, Google is acting not like the Hollywood producer who steals an author's ideas, but instead like a book reviewer who popularizes an author's work. After all, Dibbell notes, book reviewers routinely use snippets from books in their reviews, and magazines and newspapers make loads of money from advertisements they run alongside book reviews. Authors don't feel entitled to any of that money, he says, so why should they get a slice of the money Google will make from its service? “Given what's at stake here, which is the creation of a resource that nobody is denying is a good thing, their stance seems wrong to me,” Dibbell says of his fellow authors.
Whether Google is acting more like a book reviewer or like a movie producer in its use of other people's books may turn out to be a key question in the legal battle to come. Google, which did not make a company attorney available to Salon, has insisted that, as with book reviewers, copying books falls within the “fair use” exception of American copyright law. Google essentially argues that because it is copying books as a step toward a larger goal — the creation of a search engine of library books — its actions are permitted. After all, the company points out, it does exactly the same thing with Web pages. To create a searchable index, the Google Web search engine copies entire Web sites — all of Salon, for instance, resides in Google's servers — without their permission. If copying a Web site is OK, why is copying a book not?
In his Wall Street Journal editorial, Google CEO Schmidt defended the company's legal interpretation. “The aim of the Copyright Act is to protect and enhance the value of creative works in order to encourage more of them — in this case, to ensure that authors write and publishers publish,” he wrote. “We find it difficult to believe that authors will stop writing books because Google Print makes them easier to find, or that publishers will stop selling books because Google Print might increase their sales.”
Fred von Lohmann of the EFF agrees with Google's view of the law, and he says that several federal court rulings uphold what Google is doing. Courts have already ruled, for instance, that it's OK for companies to make copies of video games as part of their efforts to reverse-engineer those video games; because the copied video games weren't meant to be sold, and were instead used for some other purpose (the creation of a reverse-engineered product), the copies were considered fair use. Then there's Kelly v. Arriba Soft, a 2002 case in which a judge ruled that it was legal for a search engine company to copy photographs from other sites online and display “thumbnails” of those photos as part of its search results. The thumbnails, the court said, were quite different from the original photographs — they were smaller and of lower resolution — and were unlikely to be used for the same purposes as the originals.
A similar argument can be made on behalf of Google's book search engine, von Lohmann points out. Google is not giving readers the exact copy of the books it scans from the library; rather, it's just giving them a snippet in the same way that a graphical search engine may show users a thumbnail image of a picture.
But if there are cases that support Google's view of copyright law, there are also federal court cases that line up against it. The main case involves MP3.com, a boom-time Internet company that copied tens of thousands of CDs to its internal database without getting record labels' permission to do so. (MP3.com planned to make digital tracks of songs available to anyone who could prove they'd purchased a physical CD of the music.) In 2000, a federal judge in New York ruled that MP3.com's copying of CDs without permission infringed upon the record labels' copyrights. A reasonable judge may look at Google's actions as being essentially no different; just as MP3.com copied CDs without asking, so too is Google copying books.
Both authors and publishers sued Google in the Southern District of New York, where the MP3 case is still an important legal precedent; the choice of locale, says Vaidhyanathan, was not an accident. “They picked the court that is likely to rule along the lines of the MP3.com case, and less likely to think that Kelly v. Arriba Soft was a good decision,” he says.
Aiken of the Authors Guild, for one, is sanguine about his lawsuit's prospects. “I don't think if you were to survey copyright lawyers you'd find their view prevailing,” he says of Google. “Our case is very, very strong. It would shock the copyright bar if it was decided against us.” Still, both Aiken and Schroeder say are were open to settlement discussions with Google. “There's a lawsuit,” says Aiken, “but if they wanted to negotiate a license we could work something out.”
Google has not yet filed a legal response in either case, and it's unclear whether the company is open to a settlement. But several observers say Google may also be inclined to think about sitting down with the authors and publishers and talking about the case, including discussing a possible permission-based system for getting books into its library. For one thing, Google wouldn't want to risk losing in this case, says Vaidhyanathan, as a badly worded ruling in this case could put its other operations in legal jeopardy.
O'Reilly says that he was recently at an event sitting between Larry Page, one of Google's co-founders, and John Sargent, who sits on the board of the AAP. “I'm not going to tell you what they said,” O'Reilly says, “but I think it's fair to characterize what they're doing now as negotiating by lawsuit and press release.” Each side is hoping for some early legal decisions to go its way, O'Reilly says, and then the real settlement talks will begin.
But whatever happens with Google's venture, a more lasting outcome from this case may be a change in the way we think about how much control an author or publisher, musician or record label, filmmaker or studio, is allowed to exert over works they create — a question that has been cast into stark relief in the digital age.
Lawrence Lessig, a Stanford law professor and copyright scholar, likes to tell the story of Thomas Lee and Tinie Causby, two North Carolina farmers, who in 1945 cast themselves at the center of a case that would redefine how society thought of physical property rights. The immediate cause of the Causbys' discomfort was the airplane; military aircraft would fly low over their land, terrifying their chickens, who flew to their death into the walls of the barn. As the Causbys saw it, the military aircraft were trespassing on their land. They claimed that American law held that property rights reached “an indefinite extent, upwards”; that is, they owned the land from the ground to the heavens. If the government wanted to fly planes over the Causbys' land, it needed the Causby's permission, they insisted.
The case, in time, came to the Supreme Court, where Justice William O. Douglas, writing for the Court, was not kind to the Causbys' ancient interpretation of the law. Their doctrine, he said, “has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.”
Google supporters say the publishers' objection rings similar to that of the Causbys'. Just as the airplane rendered the Causbys' rights to the skies incompatible with the modern world, the Web has rendered publishers' right to the digital universe out of tune with modern technology and society. The public benefit of making millions of books, or excerpts of books, readily available to people worldwide “could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries,” Lessig wrote recently on his blog. “It is an astonishing opportunity to revive our cultural past, and make it accessible. Sure, Google will profit from it. Good for them. But if the law requires Google (or anyone else) to ask permission before they make knowledge available like this, then Google Print can't exist.” And if Google Print can't exist, maybe it's time to reexamine the law.[/quote]