A controversy has been brewing in publishing circles about the Google Print Project, the search engine’s plan to digitize the entire world’s printed material in an effort to build the mother of all literary search indexes.
Need to know the precise act, scene, and line citation for “a rose by any other name would smell as sweet,” from Shakespeare’s Romeo and Juliet? Type it in the Google Print search field. Not only will you get your answer, but dozens, if not hundreds, of other citations where the phrase has been used since.
Ambitious, to be sure. But Google Print is already underway, digitizing the contents of entire collections of the libraries at Harvard, Stanford, and Oxford universities, the University of Michigan, and the New York Public Library, to name just a few.
It is testament to the vision of Google and a powerful example of how the Internet can take information that would have been impossible to collect, collate, and cross-reference in the print world and deliver it cheaply and easily to an individual anywhere. This would have great value for cash-strapped school districts and homeschoolers. Google Print is hard to dislike.
Yet the Association of American Publishers is concerned. All this scanning and digitizing, they say, amounts to unauthorized copying and distribution–in essence, a copyright violation. Google has defended the practice by saying it falls under the classic “fair use” doctrine of copyright law. Google argues it is only doing what literary indexers, like books such as The Reader’s Guide to Periodical Literature or Granger’s Index to Poetry, have done in the past–providing a one- or two-sentence excerpt from a copyrighted work that points researchers to the actual source.
Another argument Google proffers is that, unlike Napster or other file-sharing services, Google Print will not resell or repackage entire copyrighted works, and thus won’t deprive rightful owners of the rightful income from their work. In fact, the Ninth U.S. Circuit Court of Appeals opined, in Kelly v. Arriba Soft (2005)–a case where Arriba was sued for reproducing thumbnails of copyrighted photos on its search site–that the search engine actually aided the copyright holder by raising awareness of his work.
All these points are valid. Yet they rely on interpreting “fair use” in a pre-Internet context. Google Print itself, as a mass market, for-profit enterprise, calls on courts and lawmakers to rethink how the definition applies.
To the user, Google appears to be doing nothing different with copyrighted content than indexers have done in the past. But Google is, in fact, monetizing that copyrighted content in a way that was not possible before the Internet.
The publishers of Granger’s and The Reader’s Guide derive revenues from sales of those volumes to libraries. There is no mass consumer market. The sole purpose of these indexes is, indeed, to direct researchers to a published work.
Google Print is not quite the same. Yes, it’s pointing researchers to complete works, and it is not illegally copying or reselling copyrighted material, elements at the heart of the “fair use” test. Nonetheless, Google is using copyrighted material as a resource to create a new and potentially lucrative revenue stream for itself. In doing so, it introduces a commercial aspect to indexing that did not exist before. As we understand Google’s intentions today, the literary content Google Print is amassing, although it is displayed a few sentences at a time, will be a tool to sell advertising.
This amounts to something more than noncommercial fair use. Publishers are correct to realize that under this scheme they are providing the raw material that undergirds the Google business plan, but receiving nothing in return. Google may have discovered value where it did not exist previously, but that does not negate the publishers’ right to demand compensation that reflects the new value.
A fair solution is simple. It starts by getting past Google’s self-justifying rhetoric that the Internet upends all previous business models. For all of Google’s vision, its business plans seem to depend heavily on getting valuable resources for free, be it municipal right-of-way, carrier bandwidth, or use of copyrighted materials.
Google likes to see itself as the model of a twenty-first century company. It’s ironic that it demands its rights to commercial resources be interpreted on twentieth century precedents.
Fortunately, this can be resolved easily enough. Literary works in the public domain are exempt from all of this. For other cases, agreements can be worked out; licensing can be arranged. The publishers themselves can even assist–much of their work exists in digitized form anyway. The content might not even have to reside on Google servers.
None of this stands to make Google Print cost-prohibitive. As the Ninth Circuit Court attests, there are benefits to being indexed online, so publishers have every incentive to support the idea. For them, it’s not so much an issue of stopping Google Print as it is a matter of ensuring all parts of the information supply chain have the same right to monetize their property in the Internet age.
Steven Titch ([email protected]) is The Heartland Institute’s senior fellow for information technology and telecom policy and edits the organization’s IT&T News.
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For more information on the 2005 Kelly v. Arriba Soft decision, see http://netcopyrightlaw.com/kellyvarribasoft.asp.