A New Page in Google's Books Fight


By Burt Helm Publishers have finally had a chance to look at some of the details of Google's Print for Libraries project, a massive effort to digitize books that some publishers fear could violate copyright laws. So far, many publishers don't like what they see -- and they want Google (GOOG) to agree to a six-month moratorium.

On June 17, a privacy-interest group, Google-Watch.org, posted a heretofore confidential contract between Google and the University of Michigan.

PUBLISHERS' FEARS. Google-Watch, which has argued that the Google search engine invades privacy, obtained the contract using the Michigan State Freedom of Information Act. The University of Michigan also made the contract available on its own site following the FOIA request.

The posting has provided many publishers with a first look at an actual contract between Google and a university -- including plans to make two digital copies of books under copyright, one for Google, the other for the college. "In some ways, that contract illustrates exactly why publishers are concerned," says Allan Adler, head of legal and government affairs for the Association of American Publishers, the industry's principal trade organization.

Google's Print for Libraries is an effort by the search giant to digitize millions of books from five of the world's largest libraries -- Harvard, Stanford, the University of Michigan, the New York Public Library, and the Oxford Bodleian Library -- and make the full text searchable. The program promises Google users the ability to search a large part of the world's collected knowledge, and many have hailed Google's endeavor to make millions of public-domain texts available for free to the public.

ONGOING TALKS. But news that Google will be making digital copies of copyrighted material without explicit permission from copyright holders has riled several publishers. Random House (VIA), John Wiley & Sons (JW.A), and the American Association of University Presses, all sent letters to Google voicing concern that the project "appears to involve copyright infringement on a massive scale," as the AAUP's letter put it (see BW, 5/23/05, "A Google Project Pains Publishers"). Lawyers from Houghton-Mifflin also wrote to Google on June 6, BusinessWeek Online has learned.

Last week, Pat Schroeder, president of the Association of American Publishers, sent a letter to Google CEO Eric Schmidt asking for a meeting with the company and a six-month moratorium on digitizing copyrighted books from the libraries. Schroeder says on June 20, Google's Tom Turvey, strategic partner-development manager for the print program, called to say Google would set up a meeting.

Google says it will wait on making a decision regarding a moratorium until after meeting with publishers and other groups. "We are in constant discussions with all of our partners, and welcome their feedback," says Susan Wojcicki, Google Print's director of product development.

CRIMP ON SALES? The University of Michigan contract states that both the school and Google plan to adhere to all copyright laws. But publishers worry about other parts of the contract that indicate Google plans to make two digital copies of library material, despite both parties acknowledging that "neither...[has] any ownership or license rights to the [library material] that is digitized."

Some publishers argue that Google doesn't have the right to make and hold digital copies of their intellectual property. At the same time, they worry that universities will use their digital versions to make books available to students and faculty online, suppressing sales of additional copies.

The Michigan contract, says Adler, is not clear on how both parties will make these copies and respect copyright laws at the same time. It also states that Google will indemnify the university in the case of any copyright lawsuits -- except if distribution of the university's digital copy violates copyrights. "It seems to open up a door," says Adler. "That's what publishers would like to clarify with Google."

"DARK ARCHIVE." The contract does make it clear that Google will provide only excerpts of copyright text in a search. The contract says that will comply with "fair use," an exemption in copyright law that allows people to reproduce portions of text for research purposes.

A Google spokesperson also sent a statement in an e-mail to BusinessWeek Online: "The use Google makes is fully consistent with both the history of fair use under copyright law.... Copyright is about making sure that authors write books, publishers distribute them, and people get to read them. What we're doing is making sure people can find the books so that they can read them."

Meanwhile, universities are treading cautiously. John Wilkin, associate university librarian at Michigan, says that while Google plans to digitize the library's entire holdings, copyrighted content will be placed in a "dark archive" that no one, including Michigan faculty and students, will be able to access.

EXISTING EXCEPTIONS. A spokesperson for Harvard says that, for now, it won't allow copyrighted books that have been digitized to be viewed in any way, either through Harvard or on Google's search engine. The New York Public Library and Oxford Bodleian Library have said they plan to digitize only books in the public domain. And a spokesperson for Stanford declined to say whether or not it plans to make digital copies of copyrighted books.

Several lawyers say digitizing the material in the first place, regardless of intent, is the problem. "There's nothing that gives Google the right to make this copy" says Laura Gasaway, an intellectual-property expert and law professor at the University of North Carolina.

While libraries are sometimes allowed to make digital copies when a copyrighted book is out of print, they aren't allowed to distribute those books digitally. As a public company, Google would have trouble justifying why it should hold onto a digital copy for itself, says Gasaway.

"POTENTIAL PITFALLS." Harvard Law professor Jonathan Zittrain has argued that Google's actions should fall under fair use because making available only excerpts won't have a strong impact on copyright-holders future financial prospects. Still, he says, it's a risky undertaking.

"These two institutions are taking a step into terra incognita...no contract could have made room for all the potential pitfalls," says Zittrain. "They are taking a bold step because what they are doing is so useful."

Whether that's also a step toward the courthouse has yet to be seen. Helm is a reporter for BusinessWeek Online in New York


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