A Google Book Deal Is Good for Everyone—Except Maybe Amazon

Photograph by Steve West/Getty Images

It’s possible there was some cheering at Google last week, when the search giant announced a deal with the Association of American Publishers over its book-scanning project. But it’s more likely there was just an overwhelming sense of relief, since the deal amounts to a truce in what has been a grueling seven-year battle. For almost a decade now, Google has been trying to scan and digitize as many books as it can, but it’s been stymied by lawsuits from the AAP and the Authors Guild, who claim the scanning process amounts to copyright infringement.

Although the Guild says it is still steadfastly opposed to a deal, the agreement with the AAP means that Google might finally be able to move forward with its plan, which stands to make searching for and buying books a lot easier—something that would theoretically benefit just about everyone, with the possible exception of Amazon.com.

A lot about the latest agreement is still unknown: Neither side is saying much about the details, including whether Google will be able to scan books without having a prior deal in place with the owner of the rights, and what will happen with respect to the contentious topic of “orphan works”—books whose publisher and/or author cannot be found. Both of these aspects, among others, were what helped to torpedo an earlier settlement agreement Google had made with the publishers’ organization and the Guild, which was eventually struck down last year. That deal also involved the payment of $125 million by the search company, but the latest arrangement has no financial terms associated with it, or at least not any that have been made public.

It’s hard to remember now, but when Google first announced in 2004 that it planned to scan and digitize the world’s books (a project formerly known as Google Books, before the search giant started actually selling books, that then became known as Google Print and finally the Google Library Project), it sounded like another one of the company’s awe-inspiring and somewhat futuristic attempts to create a better world—along the lines of robot cars and Google Street View. Google even had partnerships with some of the world’s most famous universities, including Harvard, which provided access to the scool’s massive archives of historical texts and journals (although Harvard has since shelved its partnership and instead put its efforts into the Digital Public Library of America project).

It didn’t take long, however, for reality to set in: Within a year, the publishers’ group and the Authors Guild had sued the company, arguing that scanning their books without permission amounted to copyright infringement—even though Google only showed users a small excerpt, or “snippet,” of the book when they searched for it, and also linked prominently to sites where someone could buy a copy. To the Guild and the AAP (although not to some of their members, who supported the project), scanning amounted to illegal copying, and the two organizations launched an all-out legal attack on the search company. Google offered a settlement in 2008, which wound up in court until it was rejected last year.

One of the things we don’t know is why the publishers decided to accept an agreement with Google now, especially one that sounds very similar—at least on the surface—to the one that the company has been offering in various forms for almost four years now. “The publicly described terms sound indistinguishable from the terms Google has offered to its print partners for years,” according to James Grimmelmann, a professor at New York Law School. “If that’s all, it’s hard to understand why this deal took so long.”

Did Google cave in on the “orphan works” clause that the court said gave the company too much power over these books once they were scanned? Or did the publishers’ group simply come to the conclusion that this was a war that would never end, and possibly one that should never have begun?

As more than one legal scholar has pointed out (not to mention Google itself), there is a case to be made that scanning books—with or without prior approval from the rights-holder—fails under the “fair use” principle in copyright law, which allows for others to make use of copyrighted material under certain circumstances. There’s no question that Google’s scanning would likely qualify as a “transformative use,” which is one of the four factors the courts look at when ruling on such cases.

And not only does Google’s plan not impair the rights-holder’s ability to market their books (another of the four factors for fair use), it arguably improves it substantially by making the books easier to find and buy, something publishers could clearly benefit from.

Did the publishers come to see that they had more to gain from a Google deal than they had to lose? Their position in the industry has certainly changed dramatically in the past seven years—at one time, they were the dominant players in the book business, but the rise of Amazon and the Kindle platform has destabilized things to the point where publishers are now struggling to remain competitive, especially as the focus increasingly turns to mobile and digital books. And the Google arrangement could help them to some extent, since the search giant has said part of the deal is providing publishers with a digital copy of any books they agree to have scanned.

In fact, the Google deal appears to benefit just about everyone (even authors, although the Guild doesn’t want to admit it). Readers get to search for and buy books more easily, and Google gets more content that could bring in users and keep them searching, which pays the bills. The only one who probably doesn’t benefit is Amazon, because the deal increases the supply of digital copies Amazon doesn’t control or get a share of the revenue from. And it may help publishers become better at selling their own digital content—instead of relying on the digital-book giant to do so.

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