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Glimpsing the Future of Google Print Library

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Libraries are normally quiet
places of study. Google Print Library doesn’t fit that description. Loud cries
of protest about the program have been audible for a while, and now Google
finds itself the defendant in a lawsuit. Working with the Authors Guild, three
writers sued Google in late September, saying that its efforts to digitize the
contents of several libraries constituted “massive copyright infringement.”
(For information and opinions about Google Print, see “The Brave New World of
Google Print” by Jonathan Kirsch in the March issue; and “Google Print Is a
Marketing Plus” by Robin Bartlett, August.)

 

Most observers believe that this
is only the first of several lawsuits. “I’m sure that we’re going to see lots
of litigation over this,” says attorney Lee Bromberg, founding partner and head
of litigation practice with Bromberg & Sunstein LLP, Boston.

 

How these suits play out will
determine how Google proceeds and what the ultimate fate of Google Print
Library will be. The 64-byte question is how it and similar efforts to digitize
copyright-protected material will affect the way books are sold, marketed, and
read in the digital age.

 

Turning “Copyright Law on
Its Ear”

 

When Google Print Library was
announced in December 2004, many people thought that the Mountain View, CA,
company was doing something good by creating a huge virtual library with the
holdings of the brick-and-mortar libraries at Harvard and Stanford Universities
and the University of Michigan. <span
style=’font-size:11.0pt’>The New York Times
even came out in
favor of it.

 

But several publishers’ and
authors’ trade associations—including the Association of American
University Presses, the Text and Academic Authors Association, and the
Association of Learned and Professional Society Publishers—voiced severe
misgivings about the Google project because it “turns copyright law on its
ear,” says Lloyd Jassin, a lawyer in New York City. And the Association of
American Publishers (AAP) recently issued a statement in support of the Authors
Guild’s lawsuit.

 

The ear-bending change is that
Google plans to digitize works in their entirety unless the copyright owners
tell it that they would prefer not to participate in the program. That’s
different from Google’s own Print Publisher Program and Amazon.com’s “Look
Inside,” which get the permission of copyright holders before digitizing their
texts (but see Jonathan Kirsch’s article in the March issue for pitfalls
publishers should be aware of here).

 

Views of the Slippery
Slope

 

Google says its Print Library is
“fair use” since it will display only small portions of a book—what
Google calls “snippets”—rather than the entire book. In a statement
released in response to the lawsuit filed by the three authors, the company
declared: “Copyrighted books are indexed to create an electronic card catalog
and only small portions of the books are shown unless the content owner gives
permission to show more.”

 

Others argue that since Google is
copying entire books without obtaining permission, there’s nothing fair about
it, and Google will be infringing on copyrights. The fear is that “this will
lead us down a slippery slope,” Jassin says.

 

Paul Aiken, executive director of
the Authors Guild, believes Google has already embarked on that slippery slope.
Comparisons help make the point. What Google is doing with its Print Library is
akin to a retailer putting billboards advertising its wares on people’s
property without permission, or to a bank withdrawing funds from your checking
account unless you “opt out” and tell it not to take your money.

 

“Those comparisons are valid,”
says Aiken. He points out that Google is a commercial enterprise, not a
charity, and that, since it will profit from Google Print Library, it needs to
compensate copyright holders, in addition to getting permission from them. “If
someone is going to profit from copyrighted works, the copyright owners should
be able to share in the profits,” Aiken says.

 

“It gets back to the basics,” says
PMA executive director Jan Nathan: “The publisher/author has the right to say
yea or nay.”

 

What If . . .

 

How the courts will decide is an
open question. “The jury is still out on this,” says Jens Koepke, a lawyer with
Greines, Martin, Stein & Richland in Los Angeles.

 

What does seem certain is that
Google Print Library is part of a digital onslaught that will change the
publishing world. Here are some peeks at possible futures:

 

The
book industry will set up compulsory licensing, in much the same way as the
music industry has.

 

Lawyers point to the efforts by
ASCAP, BMI, and the American Society of Music Publishers to issue and collect
fees for use of music on the radio and in other venues. For example, a health
club chain regularly pays fees to these organizations so that fitness instructors
can play music during exercise classes and not fall afoul of copyright laws.
“Music publishers are compensated by compulsory license. The question is, is
that something we want in book publishing?” asks Lee Bromberg of Bromberg &
Sunstein LLP.

 

Google
Print Library will move ahead and actually make it easier for independent
publishers and authors to market their books.

 

In a statement released after the
authors’ lawsuit was filed in September, Google argued that its program
“directly benefits authors and publishers by increasing awareness of and sales
of the books in the program.” Joe Englander of Christopher & Weisberg,
P.A., a firm specializing in intellectual property law, thinks copyright
holders should “look forward” to Google Print Library “if it’s implemented as
it is supposed to be.” And Jens Koepke also sees positive possibilities. “I do
think that there is a positive implication for publishers to the degree that
there is a whole new crop of consumers—maybe younger, more Internet-based—who
won’t go to a library but will do a search and get a snippet of a book that
fascinates them, and they will buy it. That’s obviously a benefit and a free
marketing tool.”

 

In
addition to exposing new, younger readers to books, Google Print Library will
help smaller publishers compete with larger ones by making all books searchable
through an objective (rather than a commercially oriented) search engine.

 

Independent publishers can
“compete more effectively if their books are listed,” says attorney Lee
Bromberg. “The promise is that it levels the playing field and will put books
that are ignored or overlooked at the fingertips of readers.”

 

But what if Google starts
accepting fees for “placement”? What if a book pops up at the top of the search
because the author or publisher paid a fee for it to be displayed that way,
rather than because the book is related most closely to what the reader is
seeking? Right now, Google is saying that it will accept advertising for Google
Print Library and that the ads will run alongside the search results, but the
way the advertising program is designed could affect how “democratic” such
searches are, attorneys such as Jassin say.

 

Google
Print Library will reduce publishers’ ability to make money by competing with
efforts by publishers and authors to sell their works online.

 

Although Google has not stated
that it intends to do so, it could acquire a distribution company and become
able not only to let people search its proprietary digital database but also to
let them order books from it.

 

The
Google Print Library Project will open the doors to piracy.

 

Google announced at the end of
August that its library will be available in American Samoa, Australia, Canada,
India, Ireland, Jamaica, Kenya, Mauritius, New Zealand, Pakistan, South Africa,
Trinidad, Tobago, Uganda, and the United Kingdom as well as in the United
States, where stories are already running in the computer press about software
programs that can overcome Google safeguards.

 

Richard T. Hull—an author as
well as executive director of the Text and Academic Authors
Association—believes that the protective measures that Google has put in
place (showing only “snippets” of books, limiting downloads per computer, and
so on) can easily be circumvented. For example, he notes, students could band
together to download a book by downloading pages on different computers until
they had the entire work. Other associations that represent both authors and
publishers agree with Hull. “We don’t know what security measures Google will
put in place and whether they will be enough,” Aiken says. “Somebody could just
walk off with a backup tape with 200,000 titles.”

 

Keep the Context in Mind

 

It is too soon to tell which, if
any, of these scenarios is most likely to come to pass. But, as Michael Cader, creator
of Publisherslunch.com, points out, one conclusion is undeniable. Regardless of
any particular initiative, “the ways in which readers learn about, find,
acquire, use, and sometimes purchase information are changing
dramatically—and that’s the true issue publishers will need to reckon
with.”

 

Jenny McCune, a business
writer, has worked in book publishing and reports regularly on publishing and
publishers for PMA
Independent
. You can reach her at jennymccune@imt.net.

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