The Association of American University Presses
71 West 23rd Street Suite 901 New York New York 10010
212.989.1010 Fax 212.989.0275 www.aaupnet.org
May 20, 2005
Mr. Alexander Macgillivray
Senior Intellectual Property and Product Counsel
Google, Inc.
1600 Amphitheater Parkway
Mountain View, CA 94043
Dear Mr. Macgillivray:
I am the Executive Director of the Association of American
University Presses, whose 125 members are all non-profit scholarly
publishers. Most of them are affiliated with research universities
in the United States and Canada, but our membership also includes
scholarly societies, museums, and non-degree-granting research
institutions.
The common mission that unites all our members is to help the
advancement of knowledge by making the results of scholarly
research known through their publications, and it is generally
recognized that those peer-reviewed publications set the gold
standard for excellence of information. Quantitatively the members
of AAUP publish around 750 academic journals and 11,000 books each
year; qualitatively each year their publications win hundreds of
prizes for their superiority in their fields. Major research
libraries in the English-speaking world routinely buy all the books
and journals published by AAUP members.
Last year when Google representatives were soliciting publishers'
agreement to participate in Google Print for Publishers, many AAUP
members signed on with enthusiasm. They continue to believe the
program has great potential. However, our members were
understandably confused about Google Print for Libraries when it
was first publicly announced last December. Even though, according
to the publicity, the program was being developed during the same
period as Google Print for Publishers, news of Google Print for
Libraries came as a complete surprise. It had not been mentioned by
Google representatives during any of the discussions they were
having with our members, and Google's subsequent explanations of
Google Print for Libraries have only increased that confusion and
transformed it into mounting alarm and concern at a plan that
appears to involve systematic infringement of copyright on a
massive scale.
I am referring, of course, to the portion of Google Print for
Libraries that calls for the eventual digitization of copyrighted
works in the collections of the university libraries at Harvard,
Michigan and Stanford. Google asserts that it can make these copies
without seeking permission as a fair use under Section 107 of the
Copyright Act, and Google plans to give copies of those digitized
works to the participating libraries.
The idea that once this gigantic digitization project has been
completed anyone with a computer and internet access will be able
to use Google to search the collections of these libraries --
including the public domain material from the New York Public
Library and the Bodleian Library at Oxford -- is enormously
seductive. However, it also appears to be built on a fundamental
violation of the copyright act, and this large-scale infringement
has the potential for serious financial damage to the members of AAUP.
Although they are nonprofits and many of them receive an operating
subsidy from their parent institutions, our members still have
payrolls to meet and bills to pay, and in 2003, the most recent
year for which we have such data, total university support only
averaged about 13% of their operating revenue. Virtually all the
rest of the money required to recover costs and stay in business
must come from the sale and licensing of their publications, and as
in any publishing business, copyright plays an utterly fundamental
role in establishing the legal basis on which their business rests.
Respect for copyright is essential to scholarly publishing. (For
your information, I'm appending a brief AAUP statement on the
relationship between copyright and cost recovery. You may also find
it on our website at
http://www.aaupnet.org/aboutup/issues/index.html#statement.) For
the members of AAUP, most of whom struggle to break even in the
best of times, that risk is serious indeed.
Below is a series of questions to which I would appreciate your
answers so that I can better inform our members about Google's
practices and intentions. Some of the questions are fairly specific
and technical, for which I apologize, but my purpose in asking them
is to fill in some of the gaps in information that have been left
by Google's public statements about the program, and to clarify
others. I hope you will agree that it is worthwhile to make this
effort. Without better communication and greater understanding, I'm
afraid publishers' alarm and concern about Google Print for
Libraries can only continue to grow.
Here are the questions.
1. Google recognized that permissions agreements with
publishers were necessary for Google Print for Publishers; why do
you believe agreements are unnecessary after the books have been
sold to libraries?
2. Google's claim that it is fair use to make copies of
every copyrighted work in even one major library, let alone three
of them, is completely unprecedented in scale; it is tantamount to
saying that Google can make copies of every copyrighted work ever
published, period. Courts have never recognized a fair use claim of
that magnitude. What is your argument that they should do so now?
3. This claim is also completely unprecedented in sweep.
Under U.S. law, a fair use determination requires an analysis of
the four factors specified in Section 107, and is highly fact- and
circumstance-specific. What is your argument to justify treating
books of haiku, dictionaries, novels, collections of letters,
engineering handbooks, biographies, musical scores, works of
literary criticism -- in short, every copyrighted work in a
library's collection -- as identical so that they can all fall
under the same four factors analysis?
4. If Google's position that copying copyrighted works in
order to index and display snippets of them in search results is
valid, what is to prevent, not just Google's immediate competitors,
like Microsoft, Yahoo! and Alta Vista, but all other companies with
a search engine from making the same claim? In a fair use analysis
the courts have made plain that the analysis of market harm under
the fourth factor can't be limited to the question of immediate
market harm, but must also consider what would happen if the
practice at issue were to become widespread.
5. At the recent meeting of scientific, technical and
medical publishers in Washington, your colleague J.R. Needham, if I
heard him correctly, told us that it was unnecessary for Google to
clear permissions for Google Print for Libraries with those
publishers who had agreed to participate in Google Print for
Publishers, because they had already given their consent. These
facts are simply wrong. Publishers' contracts for Google Print are
title-specific and can't be interpreted as a blanket license.
Furthermore, no publisher knew about Google Print for Libraries
until it was announced in mid-December, and at the time of those
initial announcements the librarian at the University of Michigan
was quoted as saying how surprised he was that Google and the
libraries had been so successful at keeping the program a secret
for the two years or more it was in development.
On what basis did you conclude that publishers' agreement to
participate in Google Print for Publishers automatically extended
to approval of Google Print for Libraries, when in fact they knew
nothing about this program?
6. Hugh Jones has reported that Tom Turvey recently claimed,
while speaking to the General Meeting of the Publishers Association
in the U.K., that all rights in the digital files you are creating,
including copyright, would vest in Google. If Google is, or will
be, asserting a copyright interest in its digital files of
publishers' works, would you please explain the extent and basis
for such an assertion?
7. The single case you have cited to support Google's fair
use claim, Kelly v Arriba Soft, has a pattern of facts
substantially different from those in Google Print for Libraries.
Among many other important differences, Arriba Soft was making
copies of images that had already been digitized and posted on the
web by their copyright owners. Google is presuming the authority to
digitize many works whose copyright owners have not taken that
step, and given the ease with which digital files can be duplicated
and further transmitted, may have good reason for deciding not to
do so.
Additionally, the full resolution copies Arriba Soft made in order
to create the low-resolution thumbnails were deleted from Arriba
Soft's server after the thumbnails were made. Google claims the
right to retain the digital copies it makes -- the full resolution
copies, if you will -- even in those cases when a publisher asks
them not to display any text from particular works.
Given these significant differences, how does Kelly v Arriba
Soft support your claim? There are also recent cases in which
the courts found against a claim of fair use, like Buena Vista v
Pipeline Video (which, interestingly, cites the Arriba Soft
decision). How does your fair use argument deal with these
countervailing decisions?
8. Snippet is used so consistently in describing Google
Print for Libraries that it's taking on the status of a technical
term, and thus requires a specific definition. How long is a
"snippet?"
9. How many digital copies do you intend to make in order
for your indexing system to work? How many copies do you intend to
make for archiving, and how often do the archival copies need to be
refreshed?
10. How do you intend to protect these copies against misuse?
11. What protection do copyright owners have against a future owner
of Google deciding to exploit them directly?
12. What protection do copyright owners have against Google itself
deciding to adopt a new business model that involves the direct
exploitation of these copies by, for example, offering Google users
access through the pay-per-view system for which Google has a
patent application pending?
13. Google's response to publishers' objections to Google
Print for Libraries that they may "opt out" of the program seems
both legally irrelevant and factually disingenuous. Among other
reasons, it is irrelevant because all a publisher can do under this
option is assert its control over the right of display by Google
after the infringing copies have been made. It ignores the
fundamental exclusive right of copyright owners to make copies in
the first place, and it ignores the exclusive right of
distribution, since a copy or copies will have already been given
to the participating libraries.
And disingenuous because Google's practice so far has been to honor
the "opt out" provision only on a very narrow and limited basis, if
at all. At least two publishers have asked that the works to which
they hold copyright not be included in Google Print for Libraries,
and to date, Google has not complied. Several publishers
associations have written to Google expressing concern on behalf of
their members about the copyright infringement that appears to be
built into Google Print for Libraries, and Google's replies have
treated their concerns simply as a public relations issue. Finally,
as far as I have been able to determine, there's no public
information on Google's website about how a publisher may, in fact,
opt out.
Does the "opt out" option actually exist? What is the process and
where is it described? Does it permit a publisher to opt all of its
copyrighted works out of Google Print for Libraries? If not, why
not?
14. AAUP members, working individually, in collaboration,
and with other vendors are already investing in and selling digital
copies of works they publish to libraries through, for example,
Rotunda, the ACLS History E-book project, NetLibrary, and so on.
Section 108 of the Copyright Act permits neither the indiscriminate
and wholesale digitization of copyrighted works in a library's
collection, nor does it permit digitization for any of the purposes
specified in Section 108 done by an entity other than the library
or its employees. Moreover, Google is giving copies of the files
for the works it has digitized to the libraries, not as a public
service, but as a consideration for the libraries allowing Google
to scan and digitize their collections.
In view of these facts, what is the legal justification for Google
providing digital copies of copyrighted works to the participating
libraries? Why aren't these copies infringing? How can the
libraries claim that these copies have been lawfully acquired?
15. AAUP is very concerned about many libraries' extremely
permissive use of digitized materials in their e-reserves systems.
How many digital copies of copyrighted works is Google giving to
the participating libraries? Under your agreements with them, what
terms or restrictions have you placed on the libraries' use of
these copies? Would you please provide us with a copy of your
agreements with the participating libraries?
16. What is the status of the digitization program for
Google Print for Libraries? Has Google started giving copies of the
copyrighted works it has digitized to the libraries? When do you
anticipate that Google users will be able to start using this
program?
Google Print for Libraries has wonderful potential, but that
potential can only be realized if the program itself respects the
rights of copyright owners and the underlying purpose of copyright
law. It cannot legitimately claim to advance the public interest by
increasing access to published information if, in the process of
doing so, it jeopardizes the just rewards of authors and the
economic health of those nonprofit publishers, like the members of
AAUP, who publish the most thoroughly vetted and highest quality
information in the first place.
Thank you for your consideration, and I will look forward to your
answers to these questions. In view of their pressing nature and
the ongoing character of the program, please respond by June 20. If
you think it would be useful I would be happy to meet with you or
other qualified Google representatives to discuss them further, and
to see if we can find a way they might be resolved.
Sincerely yours,
[signed]
Peter Givler
Executive Director
Cc: Allan Adler, Association of American Publishers
Jens Bammel, International
Publishers Association
Pieter Bolman, International
Association of Scientific, Technical and Medical Publishers
Hugh Jones, The Publishers Association
Sally Morris, Association of Learned
and Professional Society Publishers
Copyright and the Costs of
Scholarly Publishing
On average, university presses recover 87% of the cost of
publishing scholarly books from sales. An important component of
this revenue comes from payments received for permission to
reproduce works in, for example, anthologies, paperback editions,
coursepacks, electronic reserves, and document delivery services.
Federal copyright law is the legal foundation on which this method
of cost recovery rests. Copyright protects the right of authors to
be recognized for their work and be appropriately compensated for
it, and by limiting distribution to authorized rights holders it
provides the basis for market-based recovery of publishing costs.
Respect for copyright is essential to making this system work.
Copyright infringement violates authors' rights and, like any other
form of theft, increases the burden on those who abide by the law.
It puts pressure on prices, reduces publishing capacity, increases
deficits, and shrinks resources needed for change, experimentation,
and growth.
AAUP calls on all members of the university community -- students,
faculty, and administrators -- to respect the obligation of
university presses to strike a balance between the need for access
to the information they publish, and the twin imperatives of
protecting the legal rights of their authors and recovering
publishing costs.