Here it is: the first lawsuit. Brought by the Authors Guild against Google
over the inflammatory Google Print for Libraries
project. Nobody at Google is surprised by the suit, surely, as it has been simmering for months. Google's latest
solution to the controversy—an
opt-out program for publishers—ignores basic
copyright-law procedure as well as the fact that authors hold the copyright in some cases.
So now the lawsuit has hit the fan, and the two sides of this argument are officially polarized. As in other
high-profile litigations, third parties are clustering on both sides…
I received an e-mail from the PR firm of Find.com, with quotes from Chris Travers, CEO of Find.com. ”We
aggressively compete with Google, but we support their mission to make information more accessible to millions of
people that could never see or enjoy it otherwise. I mean, when was the last time you were in a library doing
research?” Chris is clearly appealing to a certain un-intellectual demographic here, but he’s probably using the
wrong words. I use the libraries at Princeton—both public and private—all the time. But his point is that book-oriented
libraries are becoming obsolete even for serious researchers, a fact of life now being faced by many universities,
including the U. of Texas, Austin, which has taken the drastic step of removing all its books
removing the books from its undergraduate library.
It’s not the library that is obsolete; it is the library as we once knew it.
Travers continues: ”This lawsuit is a typical short-sighted reaction from old media trying to stick their finger
in the dike as the future flows over them. Information is going digital, and Web search is how you access it.
Publishers realizing this now will benefit, while the others will grow dust sitting beside shelves of their unread
publications. The forward-thinking publishers we work with know there will be a natural progression from free to
subscription.” There is truth to the old-media argument; witness the record labels grappling with new online
realities. But though the labels behave like flailing dinosaurs sinking into the muck, that doesn’t stop them from
making life miserable for new-tech providers, crushing many of them, and from making a lot of noise in Washington, and
even from getting the Supreme Court into the act. Being forward-thinking doesn’t make a company invulnerable, as Google
might learn.
On the other hand, the Authors Guild has developed a reputation for wasteful, quixotic campaigns that do nothing but
waste member dues making the publishing industry sound whiny and short-sighted. Its ill-advised attempt to curtail
Amazon’s tie-in of used books and new books was the end for me; I withdrew my dues (which get pretty expensive if you
make decent money as an author) over that one.
Siding with Google, unsurprisingly, is the University of Michigan, whose library has steadfastly remained on the
forefront of the digitization movement. The U. of M. library has put up a
statement of support, from which a few
quotes are noteworthy:
”This project represents an enormous leap forward in the public’s ability to search and find knowledge. Throughout
history, enormous breakthroughs in technology have always created challenges, but we cannot lose sight of the
tremendous benefits this project will bring for society.” That is undeniable.
”For the first time, everyone will be able to search the written record of human knowledge. It also allows
libraries to create a digital archive that preserves this material for all time.” This interesting spin makes it
sound as if the U. of M. is using Google as an outsourced contractor in its own digitization project—and that is not
far from the truth. As this cooperative
agreement (PDF) between the university and Google shows, the university would enjoy full use of the final product
as an in-house searchable database.
”We continue to be enthusiastic about our partnership with Google, and we are confident that this project complies
with copyright law. The overarching purpose of copyright law is to promote progress in society. In doing so, it is
always a balancing act between the limited rights of the author and the rights of the public.” Whenever an
organization talks bout the “overarching purpose” of copyright law, an attempt to break that law is in progress. The
“overarching” business is an appeal to the spirit of the law, while the organization stomps on the letter of the law.
But in law, the letter defines the spirit; rewriting the letter is a grueling process that never yields to glib
pronouncements. Note, in the sentence above, the reference to the “limited rights” of the author, and the “rights”
(unlimited, presumably?) of the public.
”It is important to note that we will not be sharing the full text of copyrighted works with the public. The
Google library project will point searchers toward the works, and tell them how to buy or borrow a copy, but will not
give them the full content of works in copyright.” Unfortunately for Google and the U. of M., this is not an
important consideration at all. Statements like this, which attempt to argue for fair use, betray a continued disregard
of copyright basics. The only thing that matters is the making of the copy. Revenue does not
matter. The extent of sharing does not matter. Google’s intent does not matter. U. of M.’s intent does not matter.
Making the copy is what matters in a court of law. The U. of M. should look back to the celebrated case of MP3.com’s
BeamIt service, which innocently created a database of digitized music CDs for the online access of users who owned
those CDs. MP3.com was sued out of existence in a “gimme” case that everybody knew would slaughter the company.
All this notwithstanding, the U. of M. is right. Google is right. Publishers and authors forsake their place in the
digital future by thwarting Google Print for Libraries. But that doesn’t mean that, like the music labels, they won’t
spend the next few years blazing a noisy path of self-destruction.
1. Intent *does* matter. It is the entertainment industry that has been bending copyright law to protect their supposed rights. There is a huge grey area of browsing, personal use, and fair use that has been shrinking as a result of long, persistent litigation. Lessig's book "Free Culture" discusses this at length. See
http://lessig.org/freeculture/
For most books, people who want to read the whole book will still go out and buy it, so availability in digital form should not decrease revenue for most authors.
Posted at 4:42AM on Dec 19th 2005 by Janos Simon