PUBLISHED NOVEMBER 2005

by Jenny McCune —

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.”

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. 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.