The Google-Michigan caper
University of Michigan's confidential agreement with Google
Google plans to commercialize library content
Google Watch appeals to the American Library Association
Update August 12, 2005:
by Daniel Brandt
August 12, 2005
On August 11, Google announced on its blog that they are suspending its scanning of copyrighted works from libraries. Scanning will resume in November, which presumably gives publishers who are rights-holders time to opt-out with a list of books they do not want scanned at the library.
There are still huge problems with Google's new description of its Library Project. The biggest problem is that Google is trying to offer an "opt-out" approach to publishers, while copyright law is clearly a matter of "express consent."
Google is offering publishers new options for controlling the flow of scanned material between the Library Project and the Print Project. Publishers can submit lists of ISBNs for opting out of or into the Print Project. If they opt-in, then they get a cut of the ad revenue from the contextual ads that Google plans to display on the pages from those books.
The Library Project is best described as Google's plan to scan all
material, both copyrighted and public domain, from as many
libraries that will cooperate. This has not changed. All we
have now is a delay on scanning copyrighted material until
November, 2005.
The Print Project, on the other hand, includes a "Publisher Program" that gives publishers certain rights over how their material is displayed, and provides opt-in and opt-out procedures. The important point here is that if Google does not hear from a publisher, then the flow between the Library Project and the Print Project is automatic. Google will scan the entire copyrighted work, and will display snippets of copyrighted works in response to searches, even without the consent of the rights-holder.
In the case where the publisher has not opted-in, Google now says that for these copyrighted works, it will show links to purchase the book, but "there will be no advertisements on these pages." This is an attempt to strengthen the "fair use" argument, which is massively weakened by any showing of commercial advantage or purpose. But it falls short, because the links to online used bookstores or individual sellers would be lucrative for Google. And the previous page, where the searcher found one or more links to a copyrighted book, will show Google's AdWords. The fact that Google has huge numbers of copyrighted books available for searching will drive traffic to its site. Google wants this copyrighted material — not as a public service, but because 99 percent of its revenue comes from little ads.
Many publisher's contracts with authors stipulate that the rights revert to the author once the book is out of print. It can be assumed that of the millions of copyrighted books Google plans to scan at the University of Michigan library, the rights to a substantial percentage of these books are held by the authors themselves. It is unclear whether the options under Google Print will include authors who are rights-holders. If it does, then the information required by Google from the rights-holder is intrusive, and a violation of privacy. It will attach the author's Google cookie to the name, address, and phone number of the author. And don't forget that this is backwards to begin with — Google should find the rights-holder and request "express consent." Instead it is requiring that the author provide personally-identifying information to opt-out.
The cyber pundits who believe that "information wants to be free" often argue that individual authors and little publishers will benefit from exposure on Google. They imply that this is an argument to ignore copyright law in favor of Google's opt-out system. This argument makes no sense at all. Authors and publishers who opt-in through a system that complies with copyright law will make much more money. Not only could there be licensing fees or royalties, but it will be easier to rank in Google's search results. That's because there are huge numbers of competing copyrighted books that will be excluded from searches, when these rights-holders fail to opt-in. Many are orphaned works, many are dead authors whose estates have lost interest in their rights, and many just don't think that Google is particularly wonderful.
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One newly minted Google millionaire was touring a mansion for sale in Los Gatos. After climbing a hill in the yard and enjoying the view, he asked the real estate agent an unusual question: Could he build a Ferris wheel on the property? At one point, he declared that he wanted more land. When told that would mean living near Half Moon Bay, he said he could always commute to work in a helicopter. A few minutes later, the client turned his interest to Treasure Island, declaring that he might be able to buy some land there. "It would be cool," Marcus recalled him saying, "to take a speed boat to work every day." — San Francisco Chronicle, August 14, 2005, p.B-1 |
One reason why Google is stinkin' rich is because webmasters have never been organized. Even today there are no associations of webmasters that can represent them in court. Consequently, search engine crawlers are free to grab whatever they can find on the web for searching and caching, even though it's all copyrighted by default. After grabbing this material, Google turns around and invites webmasters to join in its advertising programs, on terms that make Google even richer. Considered in this light, many helpless webmasters are delighted that Google's arrogance has finally brought them into conflict with organized rights-holders. A copyright decision that addresses search engines in terms of opt-in as opposed to opt-out, would make the web a better place. It may also help solve some of the privacy issues and identity-theft problems that occur when crawlers grab files that they should not be allowed to have.
There is some comic relief at the end of Google's new page. Google likes the fact that the University of Michigan is now publicly displaying its contract: "We believe this will foster more open communications with the industry and the public so that everyone can better understand Michigan's involvement with the Google Print program."
I agree with Google's amazing new position on public disclosure, but still wonder why the contract was confidential to begin with. Google was trying to get away with something, which becomes clear when the contract is read closely. They still are, which becomes clear when you examine the latest spin on the Library Project.
Above all, Google wants to avoid having the University of Michigan served with a cease and desist under Section 108 of the Copyright Act. (Section 108 is hotly debated and there is no case law behind it; this essay discusses whether 108 is a safe haven for library copying, or a cap on library copying.)
This could prevent the University library from providing copyrighted material to Google in the first place, which would make the entire Library Project only marginally worth Google's trouble and expense. It seems to me that Section 108 provides a strong case for a court order — one that would go all the way to the Supreme Court if Google, which has indemnified the University against this, convinces the University to take it that far.
