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Google Print for Libraries: Fair or Foul?

Posted by Melanie Phung on Monday, October 31, 2005 at 9:37 am

The Copyright Society on October 24 held a panel discusion about the Google Print for Libraries project and his organization’s lawsuit, The Authors Guild v. Google, Inc. (PDF, 741k)

The event was called Google Print for Libraries: Fair or Foul? Paul Aiken, Executive Director of The Authors Guild, delivered this speech:

Last Thursday, Google delivered stunning financial news. It reported a 700% increase in third quarter profits. Its earnings now dwarf those of another company that relies chiefly on advertising for its income, the New York Times. The Washington Post reported that Googleā€™s earnings are now more than 10 times that of the New York Times. Googleā€™s market capitalization, now exceeding $100 billion, is 25 times that of the New York Times. Googleā€™s market cap even exceeds that of Time Warner — that combination of AOL, Time Warner cable, film studios, TV and radio networks and book and magazine publishing — beating it out by 25%.

In the book industry, some of us think of Barnes & Noble as big. Google is 40 times bigger. Or we think of Amazon as our Internet champ. Google has its value five times over. Yahoo is in the same business as Google, pretty much, and eBay is no slouch as an Internet company. Combined, theyā€™re worth about the same as Google.

And good for Google. Really. It seems theyā€™ve found the best Internet business to be in: searching the Internet. Theyā€™ve come up with clever search algorithms, securing hard-earned patents to protect some of them. Theyā€™re pursuing their business aggressively and by all accounts intelligently.

Weā€™re all for profit. Nothing warms an authorā€™s heart more than healthy semi-annual royalty statements. Helps pay the rent and put the kids through college. It keeps the author plugging away, trying to create more works that readers will value. Profit also puts a spring in the step of book publishers. It encourages them to take a chance on a new author, or to give a good author with a so-so sales record another shot. Profit is good.

So itā€™s cheering news that Google sees value in feeding copyrighted books by the million into its banks of computers, that teams of Ph.D.-laden mathematicians and engineers would be tweaking their search algorithms, to help its users find book excerpts. Google seems to have figured something out: thereā€™s a demand for searching those books, a demand that warrants the investment of tens of millions of dollars. A demand that Google is determined to satisfy, because Google, a sensible, profit-seeking enterprise, believes its investment will pay off in increased visitors to its site, and increased ad revenues. Google senses a competitive advantage

We get it. We bet Google is right. If books were digitized and searchable on the Internet, we bet Google could make a pretty penny by allowing its legions of users to search that database. And what a mind-boggling database! An assemblage of the nationā€™s copyrighted books, the result of the efforts and investments of hundreds of thousands of authors and thousands of publishers, served up in handy excerpts by Googleā€™s generous computers.

But here comes the bad part. Google says that its copying of these books — that its scanning of countless copyrighted volumes, then using optical character recognition technology to digitize the text of those works to create files to assemble into a new, unimaginably vast database, surely one of the largest databases ever assembled — that all of that copying and use of these works, would be fair use, so it doesnā€™t need a license from anyone for this copying. For good measure, itā€™s handing over a digital copy to its partner libraries, and telling them its OK to post the works to their websites. That, too, I guess, is fair use.

Since thereā€™s no license needed, in Googleā€™s view, Google doesnā€™t have to give pesky rightsholders contractual assurances about the security of their database. Could a backup tape go astray from Google or one of its partner libraries, unleashing a couple hundred thousand copyrighted works onto the Internet? Sure seems possible. Weā€™re asked to trust that thatā€™s under control. The list of companies, meanwhile, that lose critical data grows daily. What successes do hackers have at breaking in to the sites of Google and its partner libraries? Thereā€™d be no contractual need to report this, so it would likely go unreported. Security experts tell us that most data losses to hackers go unreported, and we donā€™t doubt it. No contract, no reporting, no control. ā€?Trust usā€¯ security.

What about other companies that want to do the same thing? When we first filed suit, we mentioned to reporters our concern that others would see the same business opportunity and join in. We mentioned the obvious players: Amazon.com, Microsoft, Yahoo. Yahoo, of course, has since jumped in, but they tell us theyā€™re seeking permission to use copyrighted works. But if Google gets away with itā€™s vast database, Yahoo wonā€™t stand still. Theyā€™ll make their own database, just to keep pace. Microsoft, too, has a search engine to feed and the resources to do so. Amazon has been investing heavily in its search engine, and has a certain interest in books.

So we might have four or more companies, each pursuing private gain, happily digitizing the stacks of libraries. Weā€™d have to trust each of them, naturally, and no doubt their partner libraries, not to misplace backup tapes or let down their guard against hackers.

That seems kind of inefficient. Wouldnā€™t it make more sense for, say, Yahoo and Microsoft to buy the digital database from Amazon? Still fair use, right? Copyright law wouldnā€™t impose such a wasteful burden of redigitizing on each of these companies. And there are dozens of other search engines, large and small. Seems ā€?unfairā€¯ to cut them out.

Specialized databases wouldnā€™t be far behind. WebMD would want to digitize a couple medical libraries for excerpting by its users. Fair use, of course. eterinarians, chemists and electrical engineers have their needs and websites, too. These digital databases would all be secure, not to worry. Trust us, but donā€™t audit us.

What about uses by the partner libraries? Again, the only contractual obligation imposed on libraries ā€“ at least in the sample available to us from the University of Michigan contract with Google ā€“ allows the University of Michigan to post the works at its website. No mention in the contract of limiting browsers to so-called fair use snippets. The contract also contemplates sharing the works with other academic libraries. No biggie.

Fair use is a handy concept. Just keep the excerpts shortish and the databases big. And watch the copies proliferate.

So Googleā€™s found the best way to make money on the Internet: searching the Internet. To make copyrighted books fit into its business model, it wants to pull books onto the Internet. Itā€™s a fine idea, mostly, but weā€™re saying you canā€™t simply cut authors and publishers out of this venture. Do it the right way, with proper contracts and proper controls. We want to be dealt in. Itā€™s the best business on the Internet.

Notice how he barely mentions “fair use.” Instead he warns of security issues because Google Print isn’t hack proof, and paints a picture of a brave new world in which authors don’t get paid. Hacker boogeymen and starving artists are certainly more compelling than the minutiae of copyright law or technical explanations of how search engine indexing works, but that isn’t much of a legal argument.

For a different perspective from search engine expert Danny Sullivan, see my post GooglePrint: Finding Not Reading. He explains that when a search engine indexes a page, there exists no copy of the page anywhere. Just data on what words are contained on that page and where they are in releation to each other. It is impossible, therefore, to piece together an entire book from snippets.

(And these hackers Aiken talks about, the ones he thinks can so easily get into Google’s database and post copyrighted material on the web for free … I wonder if I can commission them to steal the Google algorithm while they’re at it.)

Don’t get me wrong… I think there may be legitimate legal arguments to be made, but I wonder if the Authors Guild stance isn’t indicative of not quite “getting” the direction the world is headed.

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Category: Intellectual Property