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AUGUST 12, 2005
By Burt Helm Google's Plan Doesn't Scan Discussions between the search giant and publishers over concerns about its plan to scan copyrighted books have broken down An 11th-hour announcement by Google (GOOG ) on the evening of Thursday, Aug. 11, appeared to point toward a peaceful resolution of an ongoing dispute between the search giant and book publishers. But come Friday morning, publishers were fuming. The announcement, which was posted to Google's blog by product manager Adam Smith at 11:53 p.m. Thursday night, described changes to the Google Print for Libraries Program, a project in which the search giant plans to scan and make searchable millions of titles from five of the world's largest libraries. The program, which was first disclosed in December, 2004, has raised the hackles of publishers, who worry that by digitizing copyrighted books from three of those libraries -- Harvard, Stanford, and the University of Michigan -- Google may be infringing on copyrights. OPT-OUT CLAUSE. In the post, Smith noted that Google would stop scanning copyrighted books from now until November, apparently honoring a request for a temporary moratorium on the project made by the Association of American Publishers in June (see BW Online, 6/22/05, "A New Page in Google's Books Fight"). The blog entry also pointed out that copyright holders could give the company a list of titles that they did not want scanned by libraries -- a move that surprised and incensed publishers. The moratorium by Google would appear to indicate that the publishers won a major victory. Wrong. "Google's announcement does nothing to relieve the publishing industry's concerns," says AAP CEO Patricia Schroeder in a statement. "Google's procedure shifts the responsibility for preventing infringement to the copyright owner rather than the user, turning every principle of copyright law on its ear," she says. At the heart of the disagreement is the burden of permission. Google, which hopes to give users the ability to peer into and find information in much of the world's collected knowledge, wants to make the scanning process as quick and efficient as possible. That means avoiding the time it takes to seek and get permission for every single copyrighted book before the fact. "IT NEVER ENDS." Publishers, on the other hand, don't see why they should bear the burden of having to explicitly tell Google not to copy books that they and their authors own the copyrights to. "From our perspective, if it starts with Google, it never ends. Then anybody can do it" and publishers have to police the world, says Adam Rothberg, vice-president for corporate communications at Simon & Schuster. "It's a very dangerous precedent." A Google spokesperson, Nate Tyler, disagreed. "We feel this policy demonstrates our flexibility to work with our publishing partners to address their business concerns." Negotiations among Google, publishing houses, and the AAP have broken down after six weeks of talks. When trade groups including the AAP and the American Association of University Publishers, and publishers including Random House, Houghton-Mifflin, and John Wiley & Sons sent letters to Google expressing alarm that its scanning program could amount to "copyright infringement on a massive scale," the search giant agreed to meet and talk things out (see BW Online, 5/23/05, "A Google Project Pains Publishers"). POSITIVE OUTLOOK. On Friday, July 1, Google Chief Executive Eric Schmidt flew to New York to meet with several publishing executives and AAP representatives at the association's offices. Among those attending were Disney (DIS ) publishing unit President Robert Miller, Random House Executive Vice-President Richard Sarnoff, and the AAP's Schroeder. Both sides appeared to come out of the meeting with a positive outlook. Caught leaving the meeting, Schmidt told BusinessWeek Online: "We had a good lengthy discussion, and I'm looking forward to continuing talks." Schroeder also was optimistic: "It was productive, and it looks like things are going smoothly." In the week following that meeting, says AAP General Counsel Allan Adler, Google presented publishers with an offer similar to the one that would later be posted on the blog: It would agree to stop scanning copyrighted books from libraries until November, while it gave time for publishers to supply them a list of books they did not want scanned. SHORT NOTICE. In response, the publishers told Google that they would develop a counteroffer by September. But on Monday, says Schroeder, Google's Content Partnerships Director Jim Gerber called the AAP to say it wanted a preview of the offer that week, citing time pressures it didn't explain. A Google spokesperson denied that time pressures were an issue but declined to comment further on specific conversations with publishers. Gerber also declined to comment. The publishers put together their counteroffer and described it to Gerber over the phone on Wednesday. They would develop a "known universe of titles that we considered to be under copyright," according to an executive briefed about the discussion, who did not want to be identified. Google would be required to ask permission before it could scan those titles. After Gerber heard the pitch, Schroeder says he told her: "I don't think we like it, but I'll check it out with the others." On Thursday morning, Gerber formally rejected the offer, saying it planned to go public with its initial proposal. Google contacted publishers via e-mail on Thursday afternoon rejecting the counteroffer. Smith posted the announcement on the Google blog that evening. STILL TALKING. In the post, Google noted that it's willing to continue talking with the publishing industry. "These discussions have been crucial in helping to build a program that benefits the industry and, most important, the millions of users who'll be able to discover new books." Publishers, which had their last offer summarily rejected, are confused as to what the next step will be. "It's really not clear," says Adler. When asked if litigation was a possibility, he says: "Whenever you are talking about disputes over intellectual property, the prospect is always there." While Google's offer appears to come closer to satisfying publishers, it may be still be too far away.  Helm is a reporter for BusinessWeek Online in New York Edited by Ira Sager
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