The Google Print Library Project sounded like such a brilliant idea when it was first launched in 2004: Google said it had teamed up with a group of prominent universities and would scan millions of out-of-print and hard-to-get books—in effect, creating a vast digital library of more than 15 million volumes that would be available to anyone. Then reality hit in the form of a lawsuit by publishers and authors that said the company didn’t have the right to scan their books. A settlement agreement that took years to arrange was thrown out by the courts last year, and now the Author’s Guild is suing the universities that originally joined with Google for alleged copyright infringement. It’s another nail in the coffin of Google’s global library.
The Author’s Guild in the U.S., its counterparts in Australia, the U.K., and Quebec, and a group of individual authors have filed the suit. They claim their rights are being infringed by the book-scanning and -indexing that several universities, including the University of California and Cornell University, have engaged in, both with Google and on their own. The lawsuit also names the HathiTrust, a nonprofit entity created by the Library of Congress and a number of universities that include Harvard to manage the digital collections created by the book-scanning project.
The claims in the lawsuit are fundamentally the same as those made in the lawsuits that author and publisher groups originally launched against Google over the Library Project—namely, that scanning a book is an act of copyright infringement unless the entity doing the scanning gets the express permission of the publisher or author who owns the rights to the work. According to the lawsuit: “[B]y digitizing, archiving, copying, and now publishing the copyrighted works without the authorization of those works’ rights holders, the universities are engaging in one of the largest copyright infringements in history.”
Google Claims Broad “Fair Use”
Google’s argument has been that the scanning and indexing of books was covered under the “fair use” principle, which allows for copyright infringement under certain circumstances, including copying for research purposes and “transformative” works. (For example, Google won a court ruling that said copying images and providing thumbnails for the purpose of image search constituted fair use.) The search company offered to remove any titles that authors or publishers didn’t want Google Books to provide, if requested to do so.
Authors and publishers argued, however, that such after-the-fact permission put the onus on them to determine which books should or shouldn’t be in the company’s index. They have said Google itself should seek permission before scanning anything. The search company tried to settle the claims with a mammoth $125-million agreement signed in 2009, but a court ruled last year that the terms of the agreement were unacceptable in a number of ways.
That ruling is long and fairly complex. The biggest issue for the judge who struck down the agreement seemed to be that Google wanted to retain permanent rights to any “orphaned” works — in other words, books whose owners or rightful copyright holders couldn’t be found after a certain period. Since the decision was issued, the agreement has effectively been in limbo, although a new hearing scheduled for later this week could see the deal either resurrected or the case go to trial.
Halcyon Days Before StreetView
In some ways, the arc that the Google Books project has taken mirrors the evolution of Google’s increasingly contentious public image: When the idea was first hatched, it seemed a perfect example of the kind of ambitious, even slightly foolhardy mission for which Google was well known, such as taking photos of all the streets in the world and circulating them for free. But just as privacy concerns have given Google StreetView a beating over the past couple of years, so the Google Library Project has been vilified as an attempt by Google to control the world’s books.
While there is a good case to be made that Google’s book scanning —and therefore the actions of the universities in the HathiTrust—qualifies as fair use as defined by the courts, it remains to be seen if the company has the stomach to continue the battle. Larry Page, Google’s new chief executive officer, was one of the original architects of the Library Project (itself inspired by Project Gutenberg), but he has made it clear that he wants Google to pare down the number of things it is doing. Page has been shutting down all kinds of ambitious projects. Will Google decide simply to mothball its idea of a global library?
A decision by Google to pull back from its vision would leave the universities in the HathiTrust on their own, fighting the authors and publishers that want to maintain control over the world’s books instead of allowing Google to provide them for free. That in turn could ultimately kill the idea of a global library that makes all books available. It would leave us in a fragmented world of competing providers such as Amazon, which is reportedly considering (subscription required) a subscription-style “Netflix for books.” Is that the future of the digital library? And is that the kind of future we want?
Also from GigaOM:
Building a Better Paywall: Strategies for Monetizing News Content (subscription required)