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Posted
November 3, 2005

Google Print and the Future of Copyright Law

Google plans to make millions of out-of-print books available online – while stodgy book publishers invoke copyright law to thwart the public interest and veto the future.

If you want to understand the titanic struggle between reactionary Old Media business models and the counterintuitive models of the emerging networked environment, look no further than Google Print Library Project. This ambitious, innovative effort aims to digitize millions of library books and make them “discoverable” by Internet users through Google keyword searches.

For copyrighted books, users will be able to read “snippets” of text surrounding keywords; public domain books will be available in their entirety. Google Print promises to be a remarkable research tool – and a powerful marketing device for identifying books that would otherwise languish in obscurity. It is also likely to pioneer a new business model that earns lots of money for Google while advancing the goals of copyright law – the dissemination of knowledge and promotion of creativity.

Of course, the American Association of Publishers and the Authors Guild don’t see it that way. Insisting upon absolute control over all downstream users of copyrighted works, they consider Google Print’s scanning of books to be a violation of copyright law. While Google claims that its project constitutes a fair use of books, the AAP and Authors Guild have filed suit to stop the project. “Taking something someone else owns without permission is stealing, in my book,” argues Pat Schroeder, the President of the American Association of Publishers and former liberal Congresswoman.

Ah, but that’s just the point of fair use: you don’t need permission in order to use something. Fair use is not stealing, and is legally recognized by public policy, because it advances important public goals such as scholarship, criticism, reporting, parody and new creativity. Fair use necessarily abridges absolute property rights in order to work. Copyrights are not like tangible property because there are public rights that attach to copyrighted works. Owners do not have an automatic, universal right to any revenues that might conceivably be generated by a book. If they did, culture as we know it today could not exist.

Just as a library card catalog serves as an index to locate books, Google argues that its archive is a search and discovery tool. It argues, furthermore, that the new service will not undercut the market for books. It will actively encourage book sales by making a bigger universe of books easier to locate and buy – just as Amazon expanded book sales by making low-selling books widely available. (More than half of Amazon’s book sales now come from books that rank below its top 130,000 titles.) Google even plans to provide web links to publishers, booksellers and libraries to help users buy (or borrow) the entire book.

Still, publishers cry foul.

It’s worth noting that Google gives publishers the opportunity to “opt out” and prohibit books from being included in the Google Print archive. But publishers argue that this reverses the legal burden: Google should have to affirmatively ask each and every author in advance for the right to scan and index their books.

But this is part of the problem: copyright owners keep asserting broader and broader rights that reduce public access and use. It is rescinding the public’s end of the copyright bargain. Already we’ve seen “content owners” object to services that libraries provide – e.g., the radical idea of sharing information and providing inter-library loans. Many film studios are putting techno-locks on their CDs and DVDs that prevent us from using legally purchased works on whatever electronic appliances we choose (car stereos, laptops) and limiting where we can play them (“region-coding” may prevent you from playing a CD purchased in Europe on an American CD player; so much for “globalization”).

Now some music and film companies plan digital rights management (DRM) systems that dictate the “authorized domain” (such as a household) for permissible copying. If the film company decides that your son at college or your grandmother in a nursing home isn’t part of the “authorized domain,” you can’t copy your lawfully acquired CD for them!

Amidst the complicated legal arguments about fair use, it’s easy to lose sight of a simple fact: Google is out-innovating a stodgy publishing business.

Google Print will resurrect public access to millions of books that publishers have allowed to go out of print. Books that publishers can’t or won’t bring to market, Google Print will. Google Print will make thousands of out-of-print books commercially viable again, or at least accessible, despite the wishes of copyright holders whose archaic business models have consigned the books to oblivion.

Publishers are aligning themselves with the sheet-music publishers at the turn of the 20th Century who wanted to stymie the new-fangled phonograph. After all, it undercut the market for sheet music! Publishers obviously feel a kinship, also, with horse-and-buggy makers, who didn’t like “unfair” competition from the horseless carriage. Alan Murray of The Wall Street Journal astutely notes that the Google Print controversy is really “a fight over the spoils that come from a new-fashion way of using old-fashioned material.” Google is just a lot smarter, innovative and risk-taking than book publishers. So who should public policy reward?

It is gratifying to see that a competitor to Google Print has just arisen, one that is not likely to encounter the same sort of legal problems. The Open Content Alliance recently announced that it would build “a digital archive of global content for universal access.” This project is an international collaboration of various companies, universities, and public institutions to put a huge body of books and other material online. Partners include Microsoft, Yahoo, HP Labs, the Internet Archive, and more than a dozen universities.

Unlike Google Print, the Open Content Alliance is asking publishers to “opt in” to the project; it will use only public domain works and copyrighted works for which permission has been granted. This will skirt any litigation about fair use.

What makes these new content platforms so exciting is their potential to trigger an explosion of innovative new businesses and creative activity. As Brewster Kahle, the visionary founder of the Internet Archive, explains:

…the public domain works in the Open Content Alliance can be “borrowed” in bulk to build navigation services, do research on, and the like. Bits and pieces of the public domain collections can be re-used and re-interpreted. If someone wants to print and binding a book and sell it on Amazon.com – go nuts, if they want to make it into an audio book and post it on the web – go for it (we will even supply the hosting for this), basically let’s have a blast building on the classics of humankind.

However one wishes to argue the legal issues, Google Print and the Open Content Alliance point to a profound shift in how businesses will make money in the future – and how creativity will proceed. Authors and publishers who refuse to belong to the major online search engines and archives will be marginalized. The future belongs to those who can find new ways to add value in the networked environment. New business models will have to be invented around the edges of, and on top of, the Internet commons.

Alas, this new paradigm will disrupt if not eliminate many existing businesses. And if history is any guide, the losers are not likely to surrender their current market franchises with grace; they have too much invested in the old ways of doing business.

Regrettably, we will have to slog through some messy legal battles and policy wars before the new commons-based commercial paradigm is fully recognized and accepted. But make no mistake: the networked future is coming. But in the meantime, we must prevent incumbent businesses from using copyright law to stifle innovative competitors and broader public access to knowledge.