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WHEREFORE THOU ART #39
Google-oogle-oogle

As you've probably heard, and as I mentioned here briefly months ago, Google stunned the world late last year by announcing its intention to create a searchable electronic database of pretty much every book ever written. It's called the Google Book Search Library Project. Google cut deals with several of the worlds major libraries (Stanford, Harvard, Oxford, the University of Michigan and with the New York Public Library) to allow it to move in and scan the libraries' entire contents. Presumably once this is done, Google will then fill out the collection with whatever it finds out there that's not in these libraries' collections. We're talking one big hard-drive here.

This is, of course, all perfectly consistent with Google's general mission to make the world's information available online, although prior to the announcement that mission was typically met with rolling eyes and a mumbled "yeah, right." Not anymore. These guys are serious.

Google's announcement was met almost immediately with a panicked outcry from the publishing community. Google was stealing everybody's copyrights! And they are doing it to make a profit! Evil, evil, bad bad bad! A bunch of folks, including the Author's Guild, filed suit to stop Google from performing what they called "massive copyright infringement."

OK, there's reasonable arguments to be made on both sides, but all the knee-jerk reaction, posturing, and shooting first and asking questions, if at all, later, is a little bit much. I've got clients who react this way every time a copyright issue hits the papers (I've got one graphic designer who can't say the name "Lawrence Lessig" without the veins popping out of his forehead and spittle running off his chin). And they don't get any more reasonable when I tell them they are allowing themselves to be pawns of Big Media in the Information Wars. In fact, that observation never goes over very well.

From my perch, here's the deal. Google intends to create this database, and all of the books that are in the public domain (for which there is no copyright or the copyright has expired) will be freely accessable to everybody. Nobody's arguing that this is anything other than God's work. Thank you, Google. Thank you, Lord.

Where it gets dicey is with works that have existing copyrights. Works that, all things being equal, you'd have to buy in order to own. What Google is proposing to do is to scan these books in their entirety into the database, but only allow brief excerpts to be accessed by users. When a search term is located in a book, you'll get the search term, and a sentence or two on either side of it, along with the book title, author, publishing information, etc.

Ok, sure, hypothetically, one could use the search engine to systematically download an entire book, if one was magnificantly stupid. I mean, God and Superman could have a fight, and that wouldn't be good either. But it's not terribly likely.

Also Google says it will have an opt-out policy, where any copyright owner could tell Google "we don't want to be part of your stinkin' database," and the work would be pulled.

The basis for the big lawsuit is the initial copying of the books into the database. Just like it would be illegal for you to go to the library, take, say, John Gardner's The Sunlight Dialogues off the shelf and photocopy the whole thing, the plaintiffs are saying Google's wholesale copying is in violation of the copyright owner's exclusive rights. And they say this isn't cured by the "opt-out" aspect of the project; the only way for this to be legal, say the plaintiffs, if it were an "opt-in" system, where copyright owners would volunteer their works to be part of the database.

I'm not so sure. There is an tenet of copyright law call the Fair Use Doctrine, which excuses copying of copyrighted works were society's gain from the copying outweighs the copyright owner's interest in the protecting a work. It's typically invoked in educational, research, and public comment situations, but I think it also applies here. Yes, Google will be copying an entire work, but it has to in order to create a viable database. Yes, Google will be making money on the project, but it won't be taking money out of the copyright owner's pockets to do so. The database won't be competing with the books.

Much to the contrary, I think the Google database could be the best thing to happen to authors since Mr. Guttenberg went out to his garage and turned an old wine press into a printing press. Really.

First, the Google database will be the ultimate plagiarism detection device. In the law-school class I teach, I routinely run a suspicious phrase or footnote from a term paper through a database of law review articles, and occasionally I find that one of my darling students has been a little less than original. It's a fantastic tool. Imagine if this sort of resource were available to anybody, with all of the world's books as a database. Not only would authors have a powerful tool to protect their works, but the incidence of plagiarism would drop to just about zero, as the risk of getting caught would go through the roof.

Second, what a research tool for authors! Say you were doing a book about Elvis's proclivity for deep-fried banana and peanut butter sandwiches. With a click of a mouse, you could have a list of every mention of these sandwiches in every book ever. No more poring through indexes of books, of scanning books without indexes, no more wondering if you might have missed an important source, no more wild goose chases through the stacks at the library looking for books that might not be there. You've got the list, you go get the books.

Which brings me to the big number three. The Google database will be the best sales engine most authors have ever seen. Google will be making money off the database how? That's right, but providing advertising links along with the search results. And who do you think will be buying the advertising links on these search results? That's right, booksellers! In fact, you can be sure that for every hit on a search result, for every book that is referenced on the result page, there will be, in that familiar bright blue lettering, words that say something like "Click here to buy this book RIGHT NOW." Authors whose books have been buried by their publisher, authors whose books are self-published or are published by tiny presses with no advertising budgets, books that are out of print and shouldn't be, they'll all be on the list, and available for sale. Just like that.

History is rife with incidents of copyright owners trying to kill a new technology or idea in the name of their precious copyrights, only to figure out later that the new technology or idea is a really good thing. That the Google Book Search Library Project is another one of those good things is a virtual no-brainer.

© 2005 Paul Rapp
This article originally appeared in The Artful Mind and is intended to provide the reader with an awareness of intellectual property law and not legal advice.