Publishers Challenge Google's Book-Scanning Efforts

Lawsuit Says Digital Copies
Infringe on Copyright Laws;
A Replay of Music Battle?

By KEVIN J. DELANEY and JEFFREY A. TRACHTENBERG
Staff Reporters of THE WALL STREET JOURNAL
October 20, 2005; Page A1

Big publishers are mounting a challenge to the effort by Web search giant Google Inc. to scan millions of books and make them accessible online.

Yesterday, the Association of American Publishers filed a complaint in U.S. District Court in New York alleging that Google's digital copying of books covered by copyright is an infringement. The legal battle could help define how copyright law will affect both the Internet and the business models of publishers, news organizations and other content owners.

The association is seeking a court order to prevent Google from copying a book without the copyright owner's permission. It said it filed the suit on behalf of five major publisher members -- McGraw-Hill Cos., Pearson PLC's Pearson Education and Penguin Group (USA), Viacom Inc.'s Simon & Schuster, and John Wiley & Sons Inc. -- after discussions with Google broke down.

Google's project to scan books from several vast libraries has raised controversy since it was unveiled in December. In a statement, Google called the suit "short-sighted" and said it could hurt consumers, authors and publishers.

"Creating an easy-to-use index of books is fair use under copyright law and supports the purpose of copyright: to increase the awareness and sales of books directly benefiting copyright holders," Google said. "Fair use" is a legal doctrine allowing the use of copyrighted material for certain purposes including teaching, research and news reporting.

Some publishing executives compare the legal battle to the music industry's drawn-out war with music file-sharing services, which led to a Supreme Court decision in June. In that case, the court ruled unanimously that file-sharing companies may be liable for copyright infringement if their products encourage consumers to illegally swap songs and movies, in what was seen as a victory for old-media companies.

Legal experts are sharply divided on the Google book-scanning case, highlighting continuing debates over "fair use" and how to apply it to a variety of Internet services.

Using the Google Print service, consumers can search for keywords in the text of digitized books, viewing images or short excerpts of relevant pages. In some cases, publishers voluntarily submit books from their current catalogues. Google also is part of a separate undertaking, the Google Print Library Project, which aims to scan millions of volumes in the libraries of the University of Michigan and Stanford University, as well as at least some of the collections of Harvard University, Britain's University of Oxford and the New York Public Library.

The dispute centers on the library undertaking. Google's plan is to scan books unless it receives a request from a book's copyright holder not to do so. Copyright holders also may ask the company to restrict results to show only a book's bibliographical information.

At issue in the lawsuit is whether Google needs to ask for publishers' and authors' explicit permission before scanning books -- and whether it is sufficient to allow them to opt out.

One publisher involved in the suit, Jack Romanos, chief executive of Simon & Schuster, said the dispute with Google is "the single largest issue I've been involved in during my publishing career." At stake, he said, is whether an outside company can ignore copyrights and put a publisher's entire catalog of work online for the public to access, free of charge.

Feeling pushback from publishers and authors, Google, based in Mountain View, Calif., already has suspended the scanning of copyrighted books from libraries until Nov. 1. The Authors Guild, a New York nonprofit with more than 8,000 members who are published authors, last month separately filed suit in U.S. District Court in New York alleging "massive copyright infringement" by Google.

Google faces continuing copyright suits on other fronts, including one challenging its image search service and another related to its practice of showing headlines, photos and short excerpts of articles on its news site. Along with scuffles this year with television companies over its video-search service, the conflicts highlight the challenges Google faces as it tries to expand its searching beyond the Web to other copyrighted media.

"They look like two sweet Stanford students, but in this case we're David and they're Goliath," said Patricia Schroeder, president of the AAP and a former U.S. representative from Colorado, referring to Google's co-founders, Larry Page and Sergey Brin. The AAP's complaint alleges that Google's initiative is likely to harm publishers by usurping their "business relationships and opportunities for the digital copying, archiving, searching and public display of their works."

The AAP sent Google a letter outlining its objections in late spring and met with Google CEO Eric Schmidt on July 1 in New York, Ms. Schroeder said. Email and telephone discussions stalled at the end of August, she said, then picked up again last month, after the Authors Guild filed its suit. After Google said it would resume scanning copyrighted books on Nov. 1, the AAP decided to file suit.

Google Senior Counsel Alex Macgillivray declined to comment on the specifics of the discussions, but said, "We were surprised by the lawsuit, and we certainly didn't break off talks."

The AAP was hoping to reach an agreement with Google, in part because so many of its publisher members participate directly in the Google Print program. Under that voluntary program, Google shares with publishers any ad revenue it receives in connection with searches of its books, and links to sites where consumers can buy them.

"We're not afraid of the Internet, and we have a working relationship with Google Print and Amazon," said Mr. Romanos. "But there is a thing called copyright that protects content on behalf of the copyright holder from people stealing it."

The application of the "fair use" doctrine, which was enshrined in the Copyright Act of 1976, to the Google case has prompted vigorous debate among lawyers.

Some argue that Google's initiative is fair use, because the book-search service is what lawyers call "transformative" -- a new creation that doesn't merely duplicate what book publishers and authors provide. This argument holds that Google's project doesn't result in economic harm to publishers. It would be almost impossible for Google to get copyright owners' permission before scanning, given the many cases in which ownership is unclear, according to this view.

"The most important issue when you're doing a fair-use analysis is, 'Is there any harm to the market?' In this case you can't find it," said Jonathan Band, a Washington, D.C., lawyer specializing in Internet intellectual property issues.

But Google's critics say a digital copy isn't transformative. They argue scanning could indeed result in economic harm -- by undercutting attempts by publishers and authors to develop their own digital services. "It strikes me as an open-and-shut case of copyright infringement," said Ralph Oman, a former U.S. Register of Copyrights and lawyer at Washington law firm Dechert LLP. "They're making a complete copy of the work. And that is a violation of the copyright laws."

A court ruling likely would have broad ramifications. "The consequences of a loss for Google are enormous," said Mark Lemley, a professor at Stanford Law School. "If the publishers were to actually prevail in this lawsuit, I think it would be essentially impossible to maintain a search engine."

Google's Mr. Macgillivray said Google not only believes that its book scanning is fair use, but also that the law doesn't require it to let publishers ask that their books not be scanned.

"As long as we are going to be sued, we welcome the opportunity for the court to make it more clear to the publishers that this is not something they get to veto," Mr. Macgillivray said. Web search and book scanning "are essentially the same," he said. "...Both uses are fair and don't require a copyright holder's permission for information to be found."

Write to Kevin J. Delaney at kevin.delaney@wsj.com and Jeffrey A. Trachtenberg at jeffrey.trachtenberg@wsj.com

Books of Revelation

Imagine sitting at your computer and, in less than a second, searching the full text of every book ever written. Imagine an historian being able to instantly find every book that mentions the Battle of Algiers. Imagine a high school student in Bangladesh discovering an out-of-print author held only in a library in Ann Arbor. Imagine one giant electronic card catalog that makes all the world's books discoverable with just a few keystrokes by anyone, anywhere, anytime.

That's the vision behind Google Print, a program we introduced last fall to help users search through the oceans of information contained in the world's books. Recently, some members of the publishing industry who believe this program violates copyright law have been fighting to stop it. We respectfully disagree with their conclusions, on both the meaning of the law and the spirit of a program which, in fact, will enhance the value of each copyright. Here's why.

Google's job is to help people find information. Google Print's job is to make it easier for people to find books. When you do a Google search, your results now include pointers to those books whose contents, stored in the Google Print index, contain your search terms. For many books, these results will, like an ordinary card catalog, contain basic bibliographic information and, at most, a few lines of text where your search terms appear.

We show more than this basic information only if a book is in the public domain, or if the copyright owner has explicitly allowed it by adding this title to the Publisher Program (most major U.S. and U.K. publishers have signed up). We refer people who discover books through Google Print to online retailers, but we don't make a penny on referrals. We also don't place ads on Google Print pages for books from our Library Project, and we do so for books in our Publishing Program only with the permission of publishers, who receive the majority of the resulting revenue. Any copyright holder can easily exclude their titles from Google Print -- no lawsuit is required.

This policy is entirely in keeping with our main Web search engine. In order to guide users to the information they're looking for, we copy and index all the Web sites we find. If we didn't, a useful search engine would be impossible, and the same dynamic applies to the Google Print Library Project. By most estimates, less than 20% of books are in print, and only around 20% of titles, according to the Online Computer Library Center, are in the public domain. This leaves a startling 60% of all books that publishers are unlikely to be able to add to our program and readers are unlikely to find. Only by physically scanning and indexing every word of the extraordinary collections of our partner libraries at Michigan, Stanford, Oxford, the New York Public Library and Harvard can we make all these lost titles discoverable with the level of comprehensiveness that will make Google Print a world-changing resource. But just as any Web site owner who doesn't want to be included in our main search index is welcome to exclude pages from his site, copyright-holders are free to send us a list of titles that they don't want included in the Google Print index.

For some, this isn't enough. The program's critics maintain that any use of their books requires their permission. We have the utmost respect for the intellectual and creative effort that lies behind every grant of copyright. Copyright law, however, is all about which uses require permission and which don't; and we believe (and have structured Google Print to ensure) that the use we make of books we scan through the Library Project is consistent with the Copyright Act, whose "fair use" balancing of the rights of copyright-holders with the public benefits of free expression and innovation allows a wide range of activity, from book quotations in reviews to parodies of pop songs -- all without copyright-holder permission.

Even those critics who understand that copyright law is not absolute argue that making a full copy of a given work, even just to index it, can never constitute fair use. If this were so, you wouldn't be able to record a TV show to watch it later or use a search engine that indexes billions of Web pages. The aim of the Copyright Act is to protect and enhance the value of creative works in order to encourage more of them -- in this case, to ensure that authors write and publishers publish. We find it difficult to believe that authors will stop writing books because Google Print makes them easier to find, or that publishers will stop selling books because Google Print might increase their sales.

Indeed, some of Google Print's primary beneficiaries will be publishers and authors themselves. Backlist titles comprise the vast majority of books in print and a large portion of many publishers' profits, but just a fraction of their marketing budgets. Google Print will allow those titles to live forever, just one search away from being found and purchased. Some authors are already seeing the benefits. When Cardinal Ratzinger became pope, millions of people who searched his name saw the Google Print listing for his book "In the Beginning" (Wm. B. Eerdmans) in their results. Thousands of them looked at a page or two from the book; clicks on the title's "Buy this Book" links increased tenfold.

That's the heart of the Google Print mission. Imagine the cultural impact of putting tens of millions of previously inaccessible volumes into one vast index, every word of which is searchable by anyone, rich and poor, urban and rural, First World and Third, en toute langue -- and all, of course, entirely for free. How many users will find, and then buy, books they never could have discovered any other way? How many out-of-print and backlist titles will find new and renewed sales life? How many future authors will make a living through their words solely because the Internet has made it so much easier for a scattered audience to find them? This egalitarianism of information dispersal is precisely what the Web is best at; precisely what leads to powerful new business models for the creative community; precisely what copyright law is ultimately intended to support; and, together with our partners, precisely what we hope, and expect, to accomplish with Google Print.

Mr. Schmidt is CEO of Google.

Google Cannot Rewrite U.S. Copyright Laws

October 20, 2005; Page A15

As a former member of Congress I am very familiar both with the writing of laws and the writing of spin. Google CEO Eric Schmidt's commentary "Books of Revelation" (editorial page, Oct. 18) is fraught with illogic as he attempts to do both.

Should Google be allowed to rewrite copyright law to meet its needs given its enormous wealth and power? Mr. Schmidt seems to think so. Is Google claiming a sort of "eminent domain" over all published works and if so, who elected it to do so? Also, Google needs to be reminded that even in "eminent domain" cases the government must recognize the owners of the property it seizes.

Mr. Schmidt conveniently forgets that publishers and authors fully support the Google Print Program; we are partners with Google in that venture. Our concerns are with the Google Print Library project, and with good reason.

Google actually thinks it should be allowed -- under its Print Library project -- to make two full digital copies of every book under copyright in the libraries it intends to scan. Google claims it will show only "snippets" of the copyrighted material, not the whole book. But as it rewrites our Constitution, in which the Framers saw fit to protect the new nation's creators, "snippets" remains undefined and can be whatever Google determines it to be. Further, there is no control over how the library or others who gain access to this digital copy can use what Google has given them.

Google says publishers and authors don't "get it." We totally get it, and would embrace a program where Google obeyed the law and asked the creators permission before it copies a book. Is this too much to ask? Taking something someone else owns without permission is stealing, in my book.

Of course, Mr. Schmidt fails to mention that Google's intent with these programs is to make even more money. It earns 99% of its considerable revenue from the sale of advertising on its search engine. Can it be so greedy that it seeks to bolster its profits by freely exploiting the rights of publishers and authors? How would it respond if someone played that game with Google's patents?

Search engines like Google are a great tool for everyone, including authors. Others like Yahoo seem to "get it" that they need to respect copyright law as it is now written.

Mr. Schmidt says, "No lawsuit is required." This would be true if Google Library operated in the U.S. the way it reportedly is operating in the U.K. It apparently is complying with U.K. copyright law; why can't it show equal respect for the U.S. Constitution? Obey U.S. law, Google, and our lawsuit won't be needed.

Patricia Schroeder
President
American Association of Publishers
Washington

(The American Association of Publishers filed suit yesterday against Google to stop it from scanning books in print.)