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Google's Latest Plot Twist

Google (GOOG) appears to be backing off its controversial plan to digitize millions of books. On Oct. 31, the search giant was preparing to disclose on its company blog that it plans to focus primarily on digitizing books that are either out of print or in the public domain.

The concession is an effort to take some of the heat off the embattled Print for Libraries program. Google's announcement comes less than two weeks after it was sued for copyright infringement by five major publishers, including McGraw-Hill (MHP), Viacom's (VIA) Simon & Schuster, Pearson (PSO), and John Wiley & Sons (JWA). (BusinessWeek and BusinessWeek Online are owned by The McGraw-Hill Companies.)

In a separate complaint, the Authors Guild filed a class-action suit against Google for copyright infringement related to the project (see BW Online, 9/22/05, "For Google, Another Stormy Chapter").

As part of its Print for Libraries program, Google planned to scan books from five of the world's largest libraries and make the full text searchable by any user of its search engine. By partnering with the libraries, Google would scan millions of books, including copyrighted, in-print texts from three of the libraries -- Harvard University, Stanford University, and the University of Michigan -- without getting explicit permission from the copyright holders.

SHELVING SCAN PLANS. Google denied that its change in course was influenced by the suits. Instead, the timing was tied to Nov. 1, the date on which Google says it planned to resume scanning in-copyright books. The blog posting, it says, is an effort to clarify its plans for the public.

"We are not announcing a policy change," says Susan Wojcicki, Google's vice-president of product management. "We are communicating something that we had as a policy in the past, which we didn't communicate widely enough." (See BW Online, 8/12/05, "Google's Plan Doesn't Scan".)

In the past, Google hadn't stated a preference for the order in which it would scan certain types of books. "For each library, we have to develop a system to identify what books we scan first, and we have to work with the library to come up with that list," Nate Tyler, public relations manager for Google, told BusinessWeek Online in a meeting on Oct. 12, roughly a week before the publishers' lawsuit. While some libraries may choose to scan older books first, "there's no plan to say we're only going to scan this kind of book or only going to scan that kind of book," added Jim Gerber, Google's director of content partnerships, during the Oct. 12 meeting.

Google still plans to scan titles from libraries that are both in print and under copyright protection at some later date. But it says it will begin by scanning older books -- typically out of print or in the public domain -- at the universities, such as those housed in Michigan's Buhr Remote Shelving facility.

EXPLICIT PERMISSION. The reason for focusing on public-domain and out-of-print books is simple, says Wojcicki. "They're the most inaccessible, and it's harder for our users to get access to that material."

Google says it still believes scanning copyrighted books and displaying short excerpts is legal under "fair use," an exemption in copyright law that makes allowances for reproduction for special purposes, including research. Also, some of the out-of-print books scanned may still be under copyright, Wojcicki says.

If those books happen to be in sections of the library like the Buhr facility, then the people handling the scanning won't stop to check if a book is under copyright. In the meantime, Google will continue to scan in-print books that it receives in its Print for Publishers program -- where publishers send in titles that they have given Google explicit permission to digitize.

THE LAST WORD. Google's announcement is similar to a last-ditch offer that it made to publishers as negotiations were breaking down in early October. At that time, representatives from Google offered to put off scanning newer titles for at least a year, while they focused on the older titles. Publishers rejected that offer, then filed suit (see BW Online, 5/23/05, "A Google Project Pains Publishers").

There is still some chance for middle ground. Earlier on, members of the Association of American Publishers (AAP) put forth a plan in which Google would need to gain permission to scan any book included in the Bowker ISBN database -- a registry of books that has existed since 1967 that would encompass all in-print texts. Google would have free rein over scanning public-domain books, as well as out-of-print copyrighted texts published before 1967. Publishers proposed a "more relaxed" agreement with Google, Alan Adler, general counsel for the AAP told BusinessWeek Online at the time (see BW Online, 10/20/05, "Google's Escalating Book Battle").

It is unclear what effect, if any, this move will have on publishers. When asked about the possibility of a refocusing effort by Google, Adler declined to comment, except to say that he would need to examine the details of Google's plans. Representatives for publishers involved in the lawsuit could not be reached for comment.


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