In the thousands of years that humans have been producing written works, we've amassed quite a collection of them. However, most of us have little or no access to, or even knowledge of, most of that collection because it is scattered in bits and pieces around the world — in libraries, museums, bookstores and dusty bins in the back rooms of publishers' warehouses. Wouldn't it be convenient if we could easily search that archive on the web?
That's the basic concept behind the Google Print project and more recent plans by the Open Content Alliance, a group of industry players including Adobe, Hewlett-Packard, MSN, Yahoo and publishers such as O'Reilly Media, and the University of Toronto. Google is focusing its efforts on books, while the Open Content Alliance's plans include film and multimedia works as well.
So far, so good — except for the pesky little issue of copyright. While Plato's exclusive on his own works expired quite a few centuries ago, plenty of commercial books are still under copyright, with hundreds of new works joining their ranks all the time.
The Open Content Alliance is dealing with that issue by focusing its efforts on works that are no longer covered by copyright restrictions, while at the same time talking to publishers about getting permission to use some copyrighted material.
Google had initially done the same thing, but has since moved on and started scanning books from several libraries, including many volumes that are under copyright. The company is working under an opt-out policy — publishers and content owners can specify which copyrighted works they don't want Google to include and Google will pull them from its virtual shelves. Google halted its scanning in August to give publishers time to provide lists of books they want to exclude, but was poised to resume scanning in early November.
Publishers and authors have a problem with the opt-out requirement, and have filed two separate lawsuits to prevent Google from going forward with its plans.
Scanning Breaks Copyright
At the heart of the suits is a simple premise: the act of scanning a book without permission violates copyright. Fair use, Google's basic defence, covers quoting short excerpts from a work. But nowhere does the doctrine permit making a digital copy of the entire work, which is what scanning does. Even if you don't intend to profit from the copy, you have made a reproduction. The law doesn't allow that unless you have prior consent from the copyright owner — or so the publisher’s and author’s argument against Google goes.
Google's defence focuses on the fact that its service’s search results will only allow users to see the equivalent of an excerpt of a copyrighted work and so should be covered by fair use. Moreover, the company says its software will prevent any user from ever seeing more than 20 percent of a copyrighted work.
Google also claims that publishers benefit from having their works included in the project because it's free publicity. More users will find out about the books and possibly buy them. Plus, Google has a profit-share scheme for publishers, who get a cut of what Google gets paid for ads viewed along with the search results that include their content.
The court case will probably turn on whether the judges accept the notion that scanning violates copyright. If the precedent set in the RIAA’s (Recording Industry Association of America) successful lawsuit against MP3.com holds up, then Google will likely lose its case. The RIAA and several record companies sued MP3.com back in 2000 over the website's MyMP3.com service, which allowed users to access digitized versions of CDs they already owned from any Net-connected PC. The plaintiffs claimed that MP3.com had no right to create an online database of music, even though the company itself bought copies of the CDs it digitized. Essentially, the judge found that the act of creating a database of copyrighted works for commercial purposes, without the permission of the content owners, constituted a violation of copyright law.
It's easy to argue that Google is doing the same thing in the book world: creating an online database of copyrighted works for a commercial purpose.
What's the Harm?
While the legal issues at the heart of the dispute are about control over how and where works are distributed, as well as the basic right of content owners to make those decisions, the underlying fear for content owners is, of course, financial harm. The potential for Google Print to inflict such harm is real, especially for the authors and publishers of non-fiction reference works. Why would you buy a cookbook or a self-help manual if you could find the recipe or tip you needed from a quick, free Google search? The damage would probably not extend to works of fiction and other longer, analytical narratives: Generally, reading a few paragraphs isn't enough to spoil the whole book.
If the plaintiffs had to prove financial harm, I don't think Google would have much to worry about. Content owners would have to somehow demonstrate a correlation between Google searches and lost sales of their works. They might be able to prove losses by showing that some new books don't do as well as expected, but demonstrating loss of sales on older volumes might be tougher. But more to the point, my layperson's understanding is that proving copyright violation is not dependent on proving financial damage — which means Google's project will probably end up being curtailed.
As an avid reader, I'm not thrilled by that prospect. There are millions of books out there that I know nothing about but that might, if I had a good way to find them, entertain or enlighten me. While browsing a bookstore can be fun (yes, I'm a book nerd), sometimes you just want to cut to the chase and get the right book at the right time. Catalogue searches in libraries and the terminals you see in many bookstores, cover only what's available to that system — and sometimes only at the particular site.
In the internet age, why shouldn't I have access to more from the comfort of my own home? Amazon.com can only preview so much and in my opinion its search capabilities are only useful when you're trying to find a specific title. I understand copyright owner’s need for maintaining control of their works and their belief they should have the right to require prior consent — to opt-in as it were — for projects such as Google Print that use these works. I also think the law will back them up. But I think you and I will be the poorer for it and we, as a society, will end up losing works whose copyright owners can't be found to authorize inclusion in such a project, or can't be bothered to.