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When Google announced the library scanning project, in December 2004, it had four library partners besides Stanford. Two of them (Oxford University and the New York Public Library) took a legally cautious approach to digitization, permitting Google to copy only public domain works. A third, the University of Michigan, took the opposite view, asserting forcefully that Google could scan every one of its 7 million books. Harvard hedged its bets, initially agreeing only to a limited test program. Last week, the University of California signed on as a sixth Google partner. Its scanning program will include both public domain and copyrighted material.
Stanford, despite Keller's enthusiasm, is still hedging a bit. The librarian believes that scanning even in-print books would be legal. For the time being, however -- because who knows when those lawsuits will be resolved -- only out-of-print material is getting trucked down to Mountain View.
"But you've got to hear me talk about those two suits," Keller says. "I can't wait for them to come up."
He proceeds to explain, vehemently and at some length, why Google's use of copyrighted work is "transformative" (part of the legal definition of fair use) and why search doesn't hurt the marketplace for a book (another fair use criterion).
"Transforming all the words in the book into a giant index is wrong somehow? Give me a break," he says. "And someone's going to get paid for that? Give me a bigger break."
But getting paid is what it comes down to, he thinks -- and the lawsuits are a way to force the issue.
"If you look at what the publishers are asking," Keller says, "I think they're trying to get Google to negotiate."
If Allan Adler were in the same room with Keller, he'd likely be saying: Of course publishers want to negotiate! The whole problem is that Google won't!
Instead, the vice president for legal and government affairs for the Association of American Publishers sits in the trade association's offices at the foot of Capitol Hill, shaking his head at what he sees as the breathtaking arrogance of it all.
"In order to provide online searchability," Adler says, Google has to create "a proprietary database that in essence would be the world's largest digital library." Extremely impressive, way cool -- and clearly of enormous value, or the company wouldn't be spending so much to do it.
From New York, Authors Guild Executive Director Paul Aiken echoes Adler's incredulity. "It's an attempt to avoid licensing," Aiken says. "Without the ability to say no, a rights holder really has nothing to license."
All together now: What part of "we own the copyright" doesn't Google understand?
The Googlers certainly seemed to understand it, Adler says, when they negotiated with publishers for the right to copy and search their in-print books. Both sides were happy with that part of the Book Search program, which Google announced in October 2004.
Just two months later, the company announced its library deals.
It took a while for the publishers to react. Individual houses talked to Google, but it wasn't until the spring that they got concerned enough collectively to ask their trade association to intervene. In July, at the AAP's New York headquarters, Adler and other publishing representatives met with Smith, Gerber and Google CEO Eric Schmidt. The focus, Adler says, was on what to do with the millions of noncurrent titles that are not yet in the public domain.
"We were essentially told, 'Look, this is a problem of scalability,' " Adler says. Google was going to be "backing up trucks" to collect books for scanning. How could it puzzle out copyright status book by book?
Three weeks after the meeting, Google surprised the publishers with a unilateral move. The company had always said it would respect an author or publisher's request to "opt out" of the Book Search program after a book was scanned. Now it would accept opt-out requests in advance. To facilitate this, it declared a three-month scanning moratorium.
No, no, no, said the publishers. We should be in control here: You need us to opt in .
On Sept. 20, 2005, the Authors Guild filed a class action suit against Google, seeking statutory damages and an injunction to halt the scanning. A month later, five major publishers -- McGraw-Hill, Pearson Education, Penguin Group (USA), Simon & Schuster and John Wiley & Sons -- sued as well, with the support of the AAP. The publishers didn't ask for damages because they didn't want the focus to be on money.
Permission, permission is their refrain.
Listen long enough to both sides in this dispute and your head will spin with legal citations and passionate argument. But it's possible to isolate key points of contention. Among them:
· Copyright and fair use: As Google's Gerber puts it, the two sides obviously have a "fundamental difference about what is required to build an index of information." Because whole books or even whole pages are not displayed, Gerber and his colleagues argue, making copyrighted books searchable is the kind of "transformative use" permitted under copyright law. The publishers and the Authors Guild completely disagree, arguing that Google's unlicensed creation and retention of digital copies -- as well as its creation of additional copies for the libraries -- are illegal.
· Money and motivation: "Google would like the world to see this as a purely altruistic act on its part," says the AAP's Adler. Instead, he argues, searchable books are part of the company's "very brilliant economic strategy" for differentiating itself from competitive search engines. If you're worried that Yahoo, Microsoft or some unknown startup will scoop up lucrative market share, adding books to your database helps you stay ahead.
Google executives downplay this analysis but don't deny it. "The reason we're doing it," Wojcicki says, is that "making Google more comprehensive will yield a better search experience." Yes, that should lead -- eventually -- to more users and more revenue. But Book Search, she cautions, also represents a huge outlay of capital and isn't guaranteed to pay off anytime soon. It's a risk, as Gerber points out, you don't see publishers lining up to take.
· The Web search analogy: This gets a bit complicated, but it's crucial to understanding the dispute over Google's library scanning. Wojcicki, Smith, Gerber and Google attorney Alexander Macgillivray -- whom Smith calls "our thought leader" on intellectual property issues -- all insist that there's very little difference between the basic functioning of their Web search engine and Book Search.
The comparison goes like this:
To index the Web, Google first sends out software programs called "crawlers" that explore the online universe, link by link, making copies of every site they find -- just as Book Search makes a digital copy of every book it can lay its hands on. Web sites are protected by copyright, so if you don't want your site indexed by Google and its search brethren, you can "opt out," usually by employing a nifty technological watchdog (a file called robots.txt) that tells search engines to bug off.
Ditto for books, Google argues: Publishers and authors can opt out by informing Google that they don't want their books scanned and made searchable.
The analogy carries a risk for Google. Former Wired editor Kevin Kelly, one of the most influential journalists covering the digital revolution, sums it up this way: "If they capitulate on this with the publishers, they jeopardize their entire ability to search the Web."
Google executives don't sound worried. "No judge is going to rule that Web search is illegal," Macgillivray says. Still, they're on the horns of a dilemma. To use the Web analogy in court is on some level to bet the company, however favorable the odds.
No need to fret, say the publishers: The analogy fails in any case.
Most Web sites, they point out, are designed to be free. Books are not. As for the "opt out" requirement, as one high-ranking publishing executive explains it -- he doesn't want to be named; odds are he'll be dealing with Google in the future -- publishing houses have already installed a perfectly good, low-tech version of robots.txt.
"It's called a price," he says.
'Don't Be Evil'
Five years ago, Google's head of human resources rounded up a dozen or so early employees and asked them to try to identify the company's core values. As Battelle reports in "The Search," instead of the usual mush of corporate platitudes, a striking three-word slogan emerged: "Don't be evil."
As company mottos go, it was succinct, distinctive -- and just a tiny bit hard to live up to.
Eight years after Page and Brin incorporated Google and took over Wojcicki's garage, the company still retains some of its don't-be-evil halo. It offers a wonderfully efficient, free tool now used by countless millions around the globe. It does many things its own way, and a lot of them seem admirable: When it went public, for example, it insisted on a process that would circumvent Wall Street's usual insider cronyism and make Google stock equally available to anyone who could afford five shares.
But when you're suddenly richer than John D. Rockefeller and operating on a scale that invites Microsoft comparisons, can a backlash be far behind?
Both the APA's Adler and Kelly, the digital journalist, think it's already here. They cite, among other things, Google's morally questionable decision to abide by political restrictions placed on it by the Chinese government; the American public's dismay when it discovered just how much of its private online behavior gets filed away in Google computers; and the usual human reaction, as Kelly puts it, "to large success of every type."
Fair use or not, this might not be the ideal time for Google to claim the right to digitize every single book in the world.
The publishers' and authors' lawsuits are in the discovery phase, which likely will drag on for months. It's not clear when the court will hear the merits of the fair use argument; Adler's best guess is the spring or summer of 2007.
Unless the two sides end up negotiating after all.
And here's where the outcome of this legal battle and the future of the book may begin to merge.
Everyone involved agrees that search helps people discover books they want. Everyone also agrees that in an ideal world, once those books are found, there'd be a quick way for the finders to pay to access the actual text -- all of it or just part of it, whatever they need.
Under Google's copy-everything-without-permission plan, easy access to anything but "snippets" is denied for most copyrighted books. But with the right deal in place, copyright holders would get paid and Google could make Book Search a whole lot more useful.
When you ask Google executives directly whether they plan to offer some kind of print-on-demand service -- as Amazon.com, for instance, with publishers' permission, already does -- they can get a bit coy. "We don't really speculate about the future," Smith says, just minutes after he's noted -- in response to a more general question -- that "one of the interesting technologies to keep an eye on is print on demand."
But that's the future. Right now, five days a week, the Googlers are still backing trucks up to that Stanford loading dock.
It's anybody's guess when they'll get to the shelf where call number E169 D3 resides.