Google Library: Peril For Publishers?

June 17, 2005Google Library: Peril For Publishers? By Susan Kuchinskas
Google is digitizing entire university libraries. Book publishers haven't decided if the Google Library Project means exposure to new readers or copyright infringement on a massive scale. It's a question the Supreme Court may have to decide.

In October, the search goliath announced Google Print, a program that lets publishers work with Google to digitize books to which they hold the rights in order to make them available for search. Google promises publishers they can earn money when searchers click on contextual ads that appear alongside the book pages.
But book publishers were taken aback when they heard about Google Library, a project that had been under way since 2002 with the University of Michigan. Harvard University, Stanford University, Oxford University and the New York Public Library also are in the process of letting Google scan parts or all of their collections.

Google broke the news in December, the same day print.google.com officially went live. The Library Project was positioned as an extension of Google Print, but some publishers saw it as more of a collision with it.
Deals with Google were struck one publisher at a time, but they included restrictions on the amount of material from a work under copyright that Google could show in search results, maintaining a fair-use argument for the search engine's use. When searchers click on a listing, they might be able to read anywhere from several pages to only a few sentences containing the keywords. Listings also include a shot of the book cover, links to online booksellers and ads.
But if Google copies a library book instead of making a deal with the publisher of that book, it's likely the publisher would be cut out of any ad revenue share. Google could not make executives available for interviews, but John Wilkin, associate librarian for the University of Michigan and head of its Google Library Project, said his library had no agreement to share ad revenue with Google.

In other words, all the ad money would stay in Google's pocket. "Having reached these agreements with publishers for the use of books under their copyright, Google now announced they'd scan works from several libraries -- including works that are currently under copyright -- without requesting the permission of the copyright owners," said Allan Adler, vice president for legal affairs for the Association of American Publishers (AAP). "Imagine the consternation that caused among publishing houses who realized the possibility that books they had agreed to provide to Google under contract might nevertheless be scanned by Google without those agreements."

Adler said AAP members were wondering why Google had sat down with them, then announced two months later that it didn't really need publishers' permission to scan. "Google has said publishers can opt out works from the Library Project," Adler said, "but we understand that to mean not that Google wouldn't scan them in their entirety and include them in its database, but only that they wouldn't use part of the works in response to a search query." The librarians saw the project as a way to make their collections more accessible to a digital-centric public. They also were lured by Google's offer to give them their own digital copy of each book. Universities around the world have begun their own digitization projects, but Google's muscle and money could put those projects on Internet time.
University of Michigan's Wilkin said, "We had focused on the hard 10 percent of the problem. Google swooped in and did the easy 90 percent." While Google will only make snippets of the libraries' copyrighted works available through search, the University of Michigan plans to make entire digital copies of works not under copyright available to library users.

Google and the libraries insist they're respecting copyright and acting inside the law. Said Wilkin, "For everything for which there are no rights issues, such as pre-1923 works and U.S. government publications, we'll allow multiple online users to access our copies at once. But for works under copyright, we're not going to be able to provide full digital access for even our own users."
The AAP's Adler said the publishing community wasn't focusing on the murky fair use question, but rather on Google's plan to make money from books it hadn't bought.

"Google's use of these copyrighted works in order to expand the kinds of responses it offers to users of its search engine is clearly going to be used to enhance its ability to sell advertising in conjunction with the operation of that search engine," Adler said. The American Association of University Presses (AAUP) sent a critical letter to Google, complaining that Google Library could cut into the presses' earnings. According to the AAUP, on average, university presses recover 87 percent of the cost of publishing scholarly books from sales, with payments for permission to reproduce works in such things as anthologies, paperback editions, course packs, electronic reserves and document delivery services adding to that take.

The AAUP came in for its own share of criticism for not consulting with all its members before firing off the letter -- and for providing a copy of the letter to BusinessWeek before Google had received it. Peter Givler, the AAUP's executive director and the author of the letter, didn't respond to requests for comment.
John Wiley & Sons was one publisher that went directly to Google. "We see potential issues and potential opportunities that could have an impact on our authors, customers and the business," said Susan Spilka, Wiley's director of communications. "Were' talking to them directly and also through our trade association."

She said Wiley is in the process of learning more about the Google Print for libraries program and exploring both the issues and the opportunities.
The crux of the copyright issue, according to Adler, is not whether supplying anywhere from a few sentences to a few pages of a book to searchers is covered by the admittedly murky fair use provisions of U.S. copyright law. Rather, the Library Project seems like a way for Google to profit off books without buying them.
A court date is likely, said Lee Bromberg, a partner in Bromberg & Sunstein, a law firm specializing in intellectual property. The key question, he said, is whether the issue is more like Sony versus Universal City Studios (1984) or like Basic Books versus Kinkos (1991).

In other words, is Google like Sony, providing technology that might be used to infringe copyright but which also has substantial non-infringing uses? Or is it more like Kinkos? In that case, the courts decided that Kinkos violated publishers' copyrights when it reproduced pages from their books and sold them as reading lists to university students -- with the intention of making a profit.
It's a great time to be a lawyer, in any case. Said Bromberg, "Technology seems to continually outpace the copyright law."