There’s a problem with roads to Utopia. They’re often full of potholes, detours and, in the case of 19th Century American religious colonies, leaders who become more enamored of their own authority than their people’s welfare.
Google, of course, is not a single-minded religious colony — although reports out of its Mountain View, Calif., corporate headquarters sometimes make one wonder.
Google is a contemporary Internet-search phenomenon with a Utopian dream: “to organize the world’s information and make it universally accessible and useful,” the company proclaims.
Google also has another, less lofty goal, one explicitly undertaken when it took its stock public last summer: to earn as much profit as possible, thereby increasing the stock price and company’s value.
One or both of those objectives led Google to partner up with leading university and public libraries over the winter — Harvard’s, Stanford’s and New York City’s among them — in a plan to make digital, instantly search-able copies of the libraries’ books.
“We think that making books easier to find will have a positive impact on the world,” said a recent Google statement that neglected to add: “and on our bottom line.”
It would be indisputably magnificent to have the entire Harvard University Library collection available at 2 a.m. on one’s iBook in Boise.
It also would be illegal, at least under the terms Google is proposing, say many copyright lawyers not in the employ of Google. And book publishers, along with those increasingly minor actors in the literary world known as authors, tend to agree.
So as Google began scanning in the books to make them available in its Google Print area, writers and publishers were protesting. The long-established body of copyright law, they argued, holds that publication rights are granted beforehand, usually for a fee, rather than taken for granted, as Google seemed to be doing.
“Conservatively speaking, my understanding of the law is that if Google went to scan in a book without the author’s permission, then that would be a violation of copyright law,” says David Adler, a Chicago intellectual property attorney. “I think it would be great to be able to search text electronically, but you have to get the copyright permission.”
And Google listened. In August, the company announced a brief postponement of its journey toward an uber-library Utopia: It won’t scan any books that remain under copyright protection (books published in the last 80 years, roughly speaking) until November.
“So now, any and all copyright holders — both Google Print partners and non-partners — can tell us which books they’d prefer that we not scan if we find them in a library,” said Adam M. Smith, Google Print Product Manager, in a statement on the Google Blog.
It’s hardly a full capitulation. It is, instead, like some of the book-of-the-month plans that the Federal Trade Commission has criticized the publishing industry for employing. In those, you keep getting books that you are expected to pay for unless you specifically say you don’t want them.
Who benefits?
To Google, according to the between-the-lines implications of its statement, this apparently is a fair compromise. Those publishers who don’t want the indisputable benefits of being indexed by Google simply have to let the company know that they have their heads in the sands of another era.
Google contends — and probably wholeheartedly believes, and probably is, in large measure, correct — that its service will only help publishers and authors: “You can have your books in Google Print, which will put them into Google.com search results, direct potential buyers to your Web site, provide ongoing reports about user interest in your books, and your books will also earn revenue from . . . advertising — even if they are out of print,” said the Google statement.
And Google has promised to make available electronically only “snippets” of in-copyright material — teasers that, it contends, would act as an advertisement for the book as a whole and draw new interest to long-neglected work. Search for a term in the text of such a book and Google will only show you the specific passages, along with links to where you can buy or borrow the book.
Such usage of the books, the company and its lawyers believe, falls under the “fair use” doctrine that also lets this article quote from Google’s (copyrighted) blog but not reprint it wholesale.
To many copyright holders, though, the Google gambit feels a little like a burglar announcing to homeowners that he is going to go ahead and pillage their houses unless they specifically ask him not to.
Google would still be making an electronic copy that it has not negotiated to buy. It would still add that copy to its holdings, and it would still give a copy back to the library from which it borrowed the book.
“I don’t think there is a publisher association on the planet who says, `Oh, this is a good idea,'” says Patricia Schroeder, the former Colorado congresswoman who now heads the Association of American Publishers. “`Trust me. I’m copying your full book, but, believe me, I’m only going to use a little bit.'”
Schroeder, who says the members of her group publish about three-fourths of American books, hopes that a compromise can be reached between now and November, but says that there are no talks scheduled.
Ride the horse
Publisher Tim O’Reilly thinks his industry has no choice but to follow Google’s lead.
“My basic belief is you need to ride the horse in the direction that it’s going,” says O’Reilly, whose California-based O’Reilly Media bills itself as the leading independent computer-book publisher.
“The publisher position is a do-nothing position,” O’Reilly says.
“I really believe the Google position will end up being good for publishing, and it’s the only pragmatic position. If Google doesn’t take this approach, it will never happen.”
Lawrence Lessig, head of Stanford Law School’s Center for Internet and Society, argues that the problem is with copyright law itself.
He has written that Google’s right to scan in copyrighted works without permission “is uncertain at best.”
At the same time, he said, it would be “insanely inefficient” for Google to research copyright ownership on every book it wants to index.
His solution? Reform the murk-inducing copyright laws so that who owns which rights to what work is immediately clear and easily searchable, and the ability to create an online library isn’t limited to a company as rich as Google.
What seems clear is that the standoff is heading for the courts, where Google’s deep pockets will allow it to fight vigorously against lawyers canny enough to craft a class-action suit on behalf of copyright holders claiming violation.
What also seems clear is the dispute is rooted in two distinct cultures coming together. Old school are the publishers and authors who have seen the battles the recorded-music industry has gone through to try to earn money for electronic copies of what it produces.
O’Reilly calls them “afraid of the future. … They want more time to study it.”
Ridiculous, answers Schroeder.
“Publishers understand it’s the 21st Century, and they’ve been doing deals with Amazon and others,” she says. “They’ve digitized their stuff.”
New school is Google, which says it understands and respects copyright but is an icon of an Internet culture that has consistently challenged standard copyright protections. Certainly, most Web sites raise no objection to having their material indexed by Google because they reap tangible benefits, even while Google grabs ad dollars en route.
In the middle are all the users who would benefit from the kind of full-text searching of great books (and shabby ones) that Google would provide, a boon Lessig called “likely to bring about the most dramatic changes in the nature of research and the spread of culture since the birth of Google itself.”
But these folks also benefit from authors having the financial incentive to write these books. You can’t search what doesn’t exist. You also can’t pretend that information is used and accessed in the same way that it was when copyright law was growing up.
Harvard University Library director Sidney Verba, who still hopes to let Google start digitizing his university’s in-copyright books, has come up with a nifty formulation for the fact that there are two cultures in play here and that they will eventually have to find a way to come together:
“Everyone I know who thinks Google is the end of Western civilization,” Verba says, “uses it when they want to write something about Western civilization.”
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sjohnson@tribune.com
