Googliscious

Internetnews.com carries a story that explains more fully what Google’s interpretation of "fair use" actually is.

Jonathan Band [an IP lawyer and expert on digital content] said that search engines rely on the concept of implied license for their Web indexing, assuming that webmasters have posted information online because they want it to be found. He pointed out that Web masters could place exclusion headers in their site code, telling crawlers to keep off.

"By giving publishers the opportunity to opt-out of the Print Library Project, Google is replicating the exclusion feature of the Internet," he concluded.

Which makes perfect sense. Except what Google’s talking about replicating is not already on the web – which is the whole point of Google Print. What Google’s doing is creating that online information database in the first place, and THEN indexing it. The indexing part is fine. It’s creating the vast pool of unlicensed data to crawl in the first place that’s up for debate.

The Electronic Frontier Foundation equates what Google is doing to creating a card catalog. Which, again, is PART of what Google is doing. The OTHER part of what Google is doing is copying books into digital format so that they can index keywords, subject matter, etc. It’s that "copying books into digital format" part that’s got publishers’ and authors’ panties in a twist.

Now, if the publishers and authors were already doing this, and posting that content online for Google to crawl, that’d be one thing. But that is not what’s going on here.

Personally, I think the idea of a massive digital database of all the books Google can get hold of is a great idea. I love the idea of being able to locate books as well as journal articles, blogs, personal websites, what have you.

But I do find the opting-out-of-scanning to be a little disturbing. I understand that the entire book won’t be posted online and nobody’s going to lose out. But that little frisson of "we had to copy your work for our project and we couldn’t find you easily to get permission so we just went ahead and did it – if you don’t want that, let us know" to be a little…well, it assumes that the value of Google Print is worth more than the value of an author’s individual copyright.

And that’s not how we operate under copyright law.

If Google were to work with the Library of Congress, for example, that might be a different story entirely. Because all books which are copyrighted must be on deposit with the Library of Congress. If Google were to strike a deal with LC, and work WITH them, then perhaps we wouldn’t be in this little pickle now.

Now We’re Getting Somewhere

Finally, Google’s going to court. Shelf Awareness tells us this morning:

Three authors and the Authors Guild filed suit against Google yesterday, charging that the company’s program to scan millions of books in several major libraries and make the texts searchable online constitutes "massive copyright infringement."

According to Search Engine Journal,

Google is asking publishers to “opt-out” of the Google Print program during the next 2 months if the publishers do not want their books indexed in Google Print. Interesting tactic, especially since the whole idea behind copyrighting is to be legally opted out of anyone copying your works – even Google.

Google has of course responded in their own blog on the issue. And to a degree, they have a point – if they are only posting snippets consistent with fair use conventions, then it’s not such a big deal.

BUT…the trouble is, Google is not SCANNING snippets. They are scanning entire books for the purpose of their search engine – so that the search engine will make sure to pick up salient keywords that appear throughout the text of the book.

Even this is not so egregious…except that scanning the entire text of a book requires permissions. The libraries in question – Stanford, Harvard, et al – are giving THEIR permission. But is it the libraries’ permission to give? Or is it the copyright holders’ permission to give?

Google tells publishers, "If you don’t want us to scan your titles, then tell us and we won’t." But by doing that, publishers have to either enroll in Google Print as a partner (in a negative sense – a partner who is withholding titles from Google Print) – and thus become part of press releases and whatnot, whenever Google feels like letting the world know who its partners are (even if that partnership consists of not partnering – George Orwell is having a field day with this one).

OR, publishers have to let Google know in some abbreviated format not to scan their titles. I’ve taken a look at the form. Copyright holders are submitting books for EXCLUSION. How does one submit anything for exclusion? Isn’t the point of exclusion NOT SUBMITTING?

The more convoluted this language gets, the more I have to see the Authors’ Guild’s point. Yes, the cat’s out of the bag – Google’s going to digitize books and publishers have to get used to this. But that’s not to say that publishers shouldn’t have the option of not getting used to it if they don’t feel like it – and take the consquences. Google’s trying to force this issue by going to libraries and doing an end-run around publishers and authors is…ill-conceived at best.