Jeffrey Toobin has a lengthy article in this week's New Yorker magazine (link to full article in title, above), in the Annals of Law, "Google's Moon Shot." He recaps the history of the Google Book Project to create a digital library fully searchable with the Google search engine. He then considers two recent copyright suits against the project, and what Google's likely response will mean for the rights of users.
In addition to forming partnerships with libraries, the company has signed contracts with nearly every major American publisher. When one of these publishers’ books is called up in response to search queries, Google displays a portion of the total work and shows links to the publisher’s Web site and online shops like Amazon, where users can buy the book. “We are helping the publishers reach consumers that otherwise might not have known about their books and helping them market their books by giving limited but relevant previews of the books,” Jim Gerber, Google’s director of content partnerships, told me. “The Internet and search are custom made for marketing books. When there are a hundred and seventy-five thousand new books each year, you can’t market each one of those books in mass market. When someone goes into a search engine to learn more about a topic, that is a perfect time to make them aware that a given book exists. Publishers know that ‘browse leads to buy.’ ” (Google says that it does not take a cut of sales made through its books site.)
Still, on October 19, 2005, several leading publishers, including Simon & Schuster, the Penguin Group, and McGraw Hill—all of which are partners in Google Book Search—filed a lawsuit against the company, seeking to stop the project. The publishers don’t object to Google’s plan for helping them sell new books, but they assert that the library component of the project is illegal. They claim that Google’s “massive, wholesale and systematic copying of entire books still protected by copyright” infringes on the publishers’ rights. They demand that Google stop further copying and “destroy all unauthorized copies made by Google through the Google Library Project of any copyrighted works.” (The Authors Guild filed its lawsuit around the same time.) The publishers, who have the support of the Association of American Publishers, are suffering from a version of the problem that John Kerry had in the last Presidential campaign: they are for Google Book Search at the same time that they are against it.
The legal assertion at the core of Google’s business plan is its purported right to scan millions of copyrighted books without payment to or permission from the copyright owners. Approximately twenty per cent of all books are in the public domain; these include books that were never copyrighted, like government publications, and works whose copyrights have expired, like “Moby-Dick.” Google has simply copied such books and made them available on the Web. Roughly ten per cent of books are copyrighted and in print—that is, actively being sold by publishers. Many of these books are covered by Google’s arrangement with its publisher partners, which allows the company to scan and display parts of the works.
The vast majority of books belong to a third category: still protected by copyright, or of uncertain status, and out of print. These books are at the center of the conflict between Google and the publishers. Google is scanning these books in full but making only “snippets” (the company’s term) available on the Web. (Google searches turn up only the search term and about twenty words on either side of it.) Copyright law has never forbidden all “copying” of a protected work; scholars and journalists have long been allowed to quote portions of copyrighted material under the doctrine of fair use. Google maintains that the chunks of copyrighted material that it makes available on its books site are legal under fair use. “We really analogized book search to Web search, and we rely on fair use every day on Web search,” David C. Drummond, a senior vice-president at Google who is overseeing the response to the lawsuits, told me. “Web sites that we crawl are copyrighted. People expect their Web sites to be found, and Google searches find them. So, by scanning books, we give books the chance to be found, too.” (Google also has an “opt out” policy, which allows copyright holders to request that specific titles be omitted from the company’s database.)
However, according to the plaintiffs in the cases against Google, the act of copying the complete text amounts to an infringement, even if only portions are made available to users. “What they are doing, of course, is scanning literally millions of copyrighted books without permission,” Paul Aiken, the executive director of the Authors Guild, said. “Google is doing something that is likely to be very profitable for them, and they should pay for it. It’s not enough to say that it will help the sales of some books. If you make a movie of a book, that may spur sales, but that doesn’t mean you don’t license the books. Google should pay. We should be finding ways to increase the value of the stuff on the Internet, but Google is saying the value of the right to put books up there is zero.”
Google asserts that its use of the copyrighted books is “transformative,” that its database turns a book into essentially a new product. “A key part of the line between what’s fair use and what’s not is transformation,” Drummond said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.” In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound “fair” to the plaintiff publishers and authors. “Traditional copyright analysis says that a transformation leads to the creation of a new and independent work, like a parody or a work of criticism,” Jane Ginsburg, a professor at Columbia Law School, said. “Copying the entire work, which is what Google is doing, does not preclude a finding of fair use, but it does fall outside the traditional paradigm.”
The key legal question is whether the courts will allow Google to continue to scan copyrighted material without permission. But the schedule of the lawsuits may turn out to be as significant as the merits of the cases, which are before Judge John E. Sprizzo. In keeping with the stately pace of federal litigation, the depositions of witnesses are to begin sometime this year, and the parties will be allowed to file motions for summary judgment—in Google’s case, to dismiss the suits—in early 2008. Then there could be a trial. If the cases are appealed, they could linger well into the next decade.
However, most people involved in the dispute believe that a settlement is likely. “The suits that have been filed are a business negotiation that happens to be going on in the courts,” Marissa Mayer told me. “We think of it as a business negotiation that has a large legal-system component to it.” According to Pat Schroeder, the former congresswoman, who is the president of the Association of American Publishers, “This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal.”
The terms of such a deal aren’t hard to imagine. The Authors Guild is concerned that pirated copies of the books on Google’s site could leak to the public, and so the organization would insist on security measures. (Sadly, for writers and publishers, demand for their products has never been robust enough to generate a major piracy problem.) As for distribution of the proceeds from the site, Google might agree to share revenue with publishers, in the way that radio stations pay for the music they play; publishers could receive a fee based on a statistical analysis of how often their books are viewed. Google could pay in cash or in kind, with advertising.
But a settlement that serves the parties’ interests does not necessarily benefit the public. “It’s clearly in both sides’ interest to settle,” Lawrence Lessig, a professor at Stanford Law School, said. “Businesses in Internet time can’t wait around for years for lawsuits to be resolved. Google wants to be able to get this done, and get permission to resume scanning copyrighted material at all the libraries. For the publishers, if Google gives them anything at all, it creates a practical precedent, if not a legal precedent, that no one has the right to scan this material without their consent. That’s a win for them. The problem is that even though a settlement would be good for Google and good for the publishers, it would be bad for everyone else.”
Among Google’s potential competitors in the field of library digitization are members of the Open Content Alliance, which facilitates various scanning projects around the country and overseas. Funded largely by Microsoft and the Alfred P. Sloan Foundation, the O.C.A. has formed alliances with many companies and institutions, including the Boston Public Library, the American Museum of Natural History, and Johns Hopkins University. For the moment, though, the O.C.A.’s members are copying only material in the public domain (and works from copyright owners who have given explicit permission), which limits the scope of the projects substantially.
Google’s advantage may well be cemented if the company settles its lawsuits with the publishers and authors. “If Google says to the publishers, ‘We’ll pay,’ that means that everyone else who wants to get into this business will have to say, ‘We’ll pay,’ ” Lessig said. “The publishers will get more than the law entitles them to, because Google needs to get this case behind it. And the settlement will create a huge barrier for any new entrants in this field.”
In other words, a settlement could insulate Google from competitors, which would be especially troubling, because the company has already proved that when it comes to searches it is not infallible. “Google didn’t get video search right—YouTube did,” Tim Wu, a professor at Columbia Law School, said. (Google solved that problem by buying YouTube last year for $1.6 billion.) “Google didn’t get blog search right—technorati.com did,” Wu went on. “So maybe Google won’t get book search right. But if they settle the case with the publishers and create huge barriers to newcomers in the market there won’t be any competition. That’s the greatest danger here.”