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Another nail in the coffin of Google’s global library

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The Google Print Library Project (s goog) sounded like such a brilliant idea when it was first launched in 2004: The search giant said it had partnered with a group of prominent universities and would scan millions of out-of-print and hard-to-get books — in effect, creating a vast digital library of more than 15 million volumes that would be available to anyone. Then reality hit, in the form of a lawsuit by publishers and authors, saying the company didn’t have the right to scan their books. A settlement agreement, which took years to hammer out, was thrown out by the courts last year, and now the Author’s Guild is suing the universities that originally partnered with Google for copyright infringement. It’s another nail in the coffin of Google’s global library.

The Author’s Guild in the U.S. and its counterparts in Australia, the United Kingdom and Quebec have filed the suit, along with a group of individual authors, claiming that their rights are being infringed by the book-scanning and indexing that several universities — including the University of California and Cornell University — have been engaging in, both with Google and on their own. The lawsuit also names the HathiTrust, a nonprofit entity created by a number of universities, including Harvard and the Library of Congress, to manage the digital collections created by the book-scanning project.

Is scanning itself an act of copyright infringement?

The claims in the lawsuit are fundamentally the same as the claims that were made in the lawsuits that author and publisher groups originally launched against Google over the Library Project: namely, that scanning a book is an act of copyright infringement — unless the entity doing the scanning gets the express permission of the publisher and/or author who owns the rights to the work. According to the lawsuit:

[B]y digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works’ rights holders, the universities are engaging in one of the largest copyright infringements in history.

Google’s argument in the cases that it fought over the Library Project was that the scanning and indexing of books was covered under the “fair use” principle, which allows for copyright infringement under certain circumstances — including copying for research purposes and “transformative” works (for example, Google won a court ruling that said copying images and providing thumbnails for the purpose of image search was fair use). The search company offered to remove any titles that authors or publishers didn’t want provided through Google Books if requested to do so.

Authors and publishers, however, argued that this kind of after-the-fact permission put the onus on them to determine which books should or shouldn’t be in the company’s index, and they have said Google itself should seek permission up front before scanning anything. The search company tried to settle the claims with a mammoth $125-million agreement that was signed in 2009, but it didn’t last — a court ruled last year that the terms of the agreement were unacceptable in a number of ways.

The ruling is long and fairly complex, but the biggest issue for the judge who struck down the agreement seemed to be that Google wanted to retain permanent rights to any “orphaned” works — in other words, books whose owners or rightful copyright holders couldn’t be found after a certain period. Since the decision, the agreement has effectively been in limbo, although there is a new hearing scheduled for later this week that could see the deal either resurrected or the case go to trial.

Will Google decide it simply isn’t worth it?

In some ways, the arc that the Google Books project has taken mirrors the evolution of Google’s increasingly contentious public image: When the idea was first hatched, it seemed like a perfect example of the kind of ambitious — and even slightly foolhardy — mission Google was well-known for, like taking photos of all the streets in the world and providing them for free. But just as Google StreetView has taken a beating in the past couple of years as a result of privacy concerns, so the Google Library Project has been vilified as an attempt by Google to control the world’s books.

While there is a good case to be made that Google’s scanning of books — and therefore the actions of the universities in the HathiTrust — is fair use as it has been defined by the courts, it remains to be seen whether the company has the stomach to continue the battle. New CEO Larry Page was one of the original architects of the Library Project (which was inspired by Project Gutenberg), but he has also made it clear that he wants Google to pare down the number of things it is doing, and he has been shutting down all kinds of ambitious projects. Will Google decide to simply mothball its idea of a global library?

If Google does pull back from its vision, the universities in the HathiTrust could be on their own, fighting the authors and publishers who want to maintain their control over the world’s books instead of allowing Google to provide them for free. And that in turn could ultimately kill the idea of a global library where all books are available, leaving us in a fragmented world with competing providers such as Amazon (s amzn) — which is reportedly considering a subscription-style “Netflix for books.” Is that the future of the digital library? And is that the kind of future we want?

Post and thumbnail photos courtesy of Flickr users Marcus Hansson and guldfisken

18 Responses to “Another nail in the coffin of Google’s global library”

  1. Lila L. Pinord

    I just checked and my entire book is there on Google! I haven’t checked to see if the others are there yet. So how does one join in on a copyright infringement lawsuit against them?

  2. It always comes down to a fight about money. Even Google. Its interests seem alturistic, but there are hidden ‘off camera’ motivations, such as eyeballs! The extra views and attention a successfull Google Print Library Project would have funneled even more web visits and views to Googles already impressive offerings.
    In the future there may be bizzare historic debates about this event and its impact on collective human culture and knowledge, the hidden dangers of the free market capitalist system. “If it don’t make money in the end, it aint worth doin”

  3. It always irks me when I hear publishers/authors complain about people copying books that have been out of print for years, even decades. Same with music and movies. It doesn’t exist in the retailers eyes, nobody will take your money but, by crikey, if you copy it we’ll sue.

  4. I’m not sure about the legal position, but certainly there are a great many books that are of historical interest (and some of those are potentially of great current interest), and the publishers are not, in fact, publishing them, in any form. That’s why they are “out-of-print” (even digitally). The people who actually benefit are not the authors, nor even the original publishers, but rather companies that trade in used books. Even with highly technical books, scarcity forces a higher price, and even then, the copy will often be more than “lightly foxed”.

  5. “Google’s argument in the cases that it fought over the Library Project was that the scanning and indexing of books was covered under the “fair use” principle, which allows for copyright infringement under certain circumstances”

    If the use of a work qualifies as “fair use” or “fair dealing”, then it does not mean that copyright infringement has been “permitted” or “allowed”. It means that the use is not infringing. This is an important distinction which gets at the heart of principles of copyright.

    IP generally and copyright specifically have always been designed to strike a balance between providing incentives to innovators and creators ($$$) on the one hand, and safeguarding the public good (access to knowledge, medicine, technology) on the other.

    By arguing that “fair use ” permits copyright infringement you frame a crucial copyright exception that safeguards the public good as a kind of loophole. It is not.

    • This is silly. The Great Library in Alexandria was one library. Very few of the books that Google is scanning exist in one physical location only. It’s not like they are scanning singular ancient manuscripts.

  6. superjesus

    Another case of a big company doing something good out of greed, while their counter parts get pissy because they can’t get in on the profit. Seriously though, yes google will find a way to profit from this project (by charging subscriptions, or heavily advertising within the digitized works), but at the end of the day at least it helps preserve the works for the future. As Gecko said greed is good, and in this case for everyone.

  7. This is a wicked ‘Googly’ because I’ve seen hundred year-old books rotting in antique shops, and think it’s such a shame that their contents are being preserved, and we have the technology to do so. On the other hand, we have to safeguard the intellectual property of the originator. But too many sci-fi movies have depicted what happens when knowledge is withheld and mankind in enslaved. The issue can be resolved if both sides who have a love of books, can find a mutually-beneficial solution through communication. The future of mankind depends on it.

  8. Rachel Trocano

    The laws that Google cites are in place to ensure information isn’t kept behind lock and key of publishers – it makes sure we can always have copies of Huckleberry Finn at our disposal as long as someone is willing to print them out.

    What Google is doing is completely fair – and perhaps if a publisher wants to print an item off of Google Books, they can pay Google to take the book out of it’s library for the duration of the copyright. Then everybody wins.

  9. This will be a very interesting space to watch in the near future. The digitization of books is certainly the future (we’re there now!), and the concept of a digital library seems like a natural progression. People are resistant to change and certainly don’t want to lose money where there’s an opportunity for a profit. But ultimately if you’re fighting against technology you’re probably on the losing side of the battle. Ideally a win-win solution would arise from the “digital library” debate where both publisher and distributor are comfortable with the terms and the consumer benefits. Just as Apple ( iTunes) caused a dramatic shift in how intellectual property rights/payments are handled for music, I feel a similar shift in how we think about the digitization of all intellectual property for faster, more economical, yet no less profitable consumption is the natural evolution of the market.

  10. I would guess it’s because there is no single body of authors, there are multiple organizations, each of whom want a cut.

    There’s also the specter of individual authors not affiliated with any of those organizations cropping up and demanding megapayments of their own later after the curmudgeon’s modem finally connects to AOL and they start browing the internet for the first time in years – hence Google’s stipulation in the settlement that it has the legal right to scan the works of authors who can;t be contacted after multiple attempts.

    It’s like if you make a deal with the RIAA to stream music, but then stream music from an independent or foreign artist who’s not part of the RIAA – even though you have a signed agreement, you’re still on the hook with that artist and whatever group he’s affiliated with.

  11. “If Google does pull back from its vision, the universities in the HathiTrust could be on their own, fighting the authors and publishers who want to maintain their control over the world’s books instead of allowing Google to provide them for free.”

    Come on, that’s simply disingenuous. Google doesn’t do anything out of a sense of altruism– note that lovely little bit about wanting the rights to all orphaned works. Project Gutenberg certainly doesn’t do that, and the authors and publishers of the world want to retain control of THEIR books, not the world’s books, like some ridiculous comic-strip cabal.

    A very few nods are made to how Google’s taken a legal thrashing over this, but curiously few details on why: Suggesting that the legal system has some sort of bias against them is ridiculous. Perhaps it’s because the terms they offered were just as ludicrous as asking publishers and authors to opt works out, because asking them for permission would have got in the way of the whole grandiose plan. Who knows? This article certainly won’t tell us.