Objection to Google's plan to digitize millions of library books is mounting. After months of saber-rattling, publishers made a direct thrust at the Web search giant. In a complaint filed in the U.S. District court in New York on Oct. 19, publishers McGraw-Hill (MHP), Pearson Education (PSO), Viacom's (VIA) Simon & Schuster, Penguin, and John Wiley & Sons (JWA) sued Google (GOOG) for copyright infringement (BusinessWeek and BusinessWeek Online are owned by The McGraw-Hill Companies). Google says its actions are compliant with an exemption in copyright law that makes allowances for reproduction for special purposes like research.
The suit, which seeks a ruling rather than an award for damages, reflects publishers' concerns over Google's Print for Libraries. As part of the program, Google plans to scan and index books from five of the world's major libraries, and make that content searchable using the Google's search engine (see BW Online, 9/5/05, "Google's Grand Ambitions").
While Google won widespread praise for its offer to digitize classic and obscure books in the public domain, it drew the ire of publishers and authors alike when it announced that at three of the libraries it would also scan the full texts of copyrighted books.
THE PERMISSION PROBLEM. The lawsuit is a setback to Google's library program, the case has broader implications: A ruling against Google could disrupt its aims to digitize and make searchable all kinds of media and information (see BW Online, 9/22/05, "For Google, Another Stormy Chapter").
"If Google were to lose this, it might hinder not just Google Print but all sorts of technologies," says Fred von Lohmann, senior intellectual property attorney at the Electronic Frontier Foundation. Chances are next to nil that a negative ruling would jeopardize the Internet search business, since Google's practice of copying Web pages for search purposes is generally accepted by Web publishers.
But a legal ruling forcing Google to gain explicit permission from all other copyright holders could hobble attempts to apply the same method to existing media, like books, film, or sound recordings in programs like Google Print and Google Video. "Web search would not exist today if you had to go door-to-door asking permission," says Google's intellectual-property counsel Alexander MacGillivray. The sheer volume of information is too vast to get permission on a case-by-case basis.
"MASSIVE COPYRIGHT INFRINGEMENT." The disagreement centers on the question of permission. Google argues that since it's basically just creating an enormous card catalog -- and that it will limit what users can see of copyrighted texts to one- or two-sentence excerpts -- it shouldn't have to get explicit reproduction permission. Publishers argue that scanning a whole book without permission, and storing it indefinitely on a Google server, violates copyrights, plain and simple.
The rift between publishers and Google highlights the chasm between how copyrights are viewed online and off. On the Internet, copying and storing files is a fundamental part of how Google's search engine works. By indexing Web-page copies on its servers, Google can rapidly search those files and point users in the direction of relevant sites. In the cases where a Web publisher objects, Google's allows it to "opt out" by writing a special tag in its site's code.
The suit comes after 10 months of escalating tensions between publishers and the search giant. Earlier in the year, trade groups including the American Association of University Publishers (AAUP), the Association of American Publishers (AAP), and major publishers including Random House and John Wiley & Sons sent Google letters expressing concern that the Print for Libraries program amounted to "massive copyright infringement." Negotiations ensued.
OFFER REJECTED. At a meeting on July 1, Google Chief Executive Eric Schmidt extended what Google considers a compromise, offering publishers an opt-out clause comparable to its policy with Web-site owners. Google would pause scanning until November while giving publishers a chance not to have their books searched.
AAP members rejected the proposal, saying Google's actions would open the door for anyone to digitize their intellectual property. In the summer negotiations, members of the AAP proposed that Google use the Bowker database, which assigns a specific number, called an ISBN, to every book published since 1967, for determining which books required permission. For all out-of-print copyrighted titles without ISBN numbers, the AAP would have a "more relaxed" agreement with Google, says Alan Adler, general counsel of the AAP.
The AAP offer was untenable, Google's MacGillivray says. "If copyright law were such that if [a library] wanted to create a card catalog it had to find every single person who had the rights to these books...imagine how few books" would be accessible, he says. "It turns copyright law on its head."
FIRING UP THE SCANNERS. So Google decided to go on with the plan originally proposed by Schmidt. The move rankled book publishers and authors alike, and on Sept. 20 the Authors Guild filed suit. The publishers decided to call Google and renew talks to give a peaceful resolution one more try.
After several phone meetings, both sides held a last-ditch conference call on Oct. 13. Google execs made this offer: They would delay the scanning of in-copyright books for a longer period of time, while continuing to meet, according to Adler. But says AAP CEO Pat Schroeder: "Google wasn't taking negotiations seriously," and the AAP board decided to pull the trigger.
On Oct. 17, the AAP board called Google and said its offer was unacceptable. The lawsuit was filed two days later. Google says that, regardless of the suit, it plans to resume scanning copyrighted books on Nov. 1 (see BW Online, 8/12/05, "Google's Plan Doesn't Scan").
THEN AND NOW. An irony is that it's not clear whether the program would help or hinder book sales. Almost exactly a year ago, publishers showered praise on the search giant when it announced a slightly different program called Print for Publishers at the Frankfurt Book Fair in Germany. In that program, Google invited publishers to send it specific titles that it would scan so that it could make excerpts show up in search results, and publishers lauded the program as an innovative way to promote new and old titles alike. All of the companies involved in the litigation are partners with Google in that program, and say they plan to remain partners.
What a difference a year makes. Just hours after the news of the American publishers' lawsuit, members of the International Publishers Assn. and PEN, the authors association, passed a resolution at this year's Frankfurt Book Fair voicing opposition to Google Print for Libraries. If the publishers prevail, the company with the unofficial motto "Don't Be Evil," may need to start saying please.
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Helm is a reporter for BusinessWeek Online in New York
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