In 2004, Google announced that it would create the largest library in the history of the world. The search company had signed up with major universities around the globe to scan and make searchable every word in every volume they contained. When it was done, we’d be able to search through printed texts in the same way we search the Web. It was a lofty ambition, and it was quickly stopped short by a cold reality—copyright law.
Google maintained that its books search engine was legal under the fair use provisions of copyright law. Under the plan, Google would show Web searchers the full text of all books that were old enough to have passed into the public domain. For books that were still in print, Google would show a few pages only if its copyright holder gave permission. That left one more category: books that were out of print but still covered by copyright law; these are known as “orphan works,” because in many cases it’s impossible to track down either “parent,” the author or the publisher, to obtain permission to scan them. For these books, Google offered a compromise. It would scan and copy orphan works it encountered in libraries, but when they showed up in search results, Google would show only a “snippet“—a few words from the book, the digital equivalent of an entry in a card catalog.
The Authors Guild and the Association of American Publishers were not satisfied. They labeled Google’s project theft on a massive scale, and in 2005 they sued to stop it. Last year, Google, the authors, and the publishers announced that they’d reached a landmark settlement, which is subject to review by a federal judge in June. But in recent weeks, it has come under intense attack from copyright scholars and consumer advocates, and the Justice Department has reportedly opened an antitrust inquiry into the settlement. Rather than satisfy Google’s mission of organizing the world’s information, critics say, the deal gives Google and the publishing industry unrivaled power in the new market for digital books. Looking at the settlement, it’s hard to disagree.
At least initially, the terms of the deal will look pretty grand for Web searchers. Say you search Google Books for “Winston Churchill.” At the moment, you’ll come up with lots of books that offer you only snippet view or no preview at all. Under the new settlement, Google would allow American users to preview 20 percent of any title it has scanned. Public libraries and universities would enjoy even broader access; users there would be able to see the entire text of any book in the engine. Google will display ads alongside the books, and it will also offer users the chance to buy a digital copy of books they find. (What format that digital copy would take is still unresolved.) The company will put 63 percent of revenues into a fund called the Book Rights Registry, which would be maintained by the publishing industry. You can think of this as an orphans scholarship fund; authors who suspect that Google may be serving up their out-of-print (but still copyrighted) books could register with the BRR and get a cut of that fund. (The formula by which the money will be distributed to authors has not been released.)
To summarize, then: The plan would give Web searchers far greater access to books, and Google and authors will be able to make money from it. What’s the big problem?
For one thing, notes Pamela Samuelson, a law professor at University of California-Berkeley, only authors who register with the BRR will get paid. If I registered, I would get a slice of revenue even if nobody had searched for my book; if the authors of all those out-of-print books about Winston Churchill hadn’t bothered to register (or if they’re dead and their heirs hadn’t known to register)—well, tough. Google and the publishing industry would make a pretty penny regardless.
What’s more, there are no provisions in the deal for authors to allow readers to get their books for free. Say the family of Randolph Churchill, son of Winston and author of a now out-of-print 1966 compendium of his father’s letters, wanted the book to be made available to anyone who searched for it. (After all, they haven’t made money from it in years.) Samuelson notes that the BRR is governed by “copyright maximalists” like the Authors Guild, groups that have expressed reservations about relaxing the access rules for electronic works. There’s little chance they’d allow authors to give people a chance to download books freely.
But the most objectionable part of the plan is the prize it grants to Google—as the only company in the world with digital access to most books. Amazon, Yahoo, Microsoft, and groups like the Open Content Alliance would be shut out of the BRR scheme. Google and the publishing industry would have free rein to raise prices on all the works in their vast catalog.
But we can all agree that the end goal of digitalizing all books and making them available would be good for readers. Beginning in 2006, I spent a year and a half researching my book; Google Books and Google Scholar, the company’s academic research engine, were my saviors. Even though I could see only small sections of the books and papers I found through Google, the search engines helped me get a broad look at best titles in the fields I was researching. Google brought books to life—instead of reading through survey texts, I could search for footnotes, which led me to more precise titles, which led to still others and others, in much the same way that we navigate the Web using hyperlinks. Eventually, of course, I had to drag myself to the library to pick up physical copies of the works in question—a step that I considered ridiculous. I would gladly have paid Google and the authors for the right to electronically review the books and papers, but there was no way to do so.
I’ve long called on the publishing industry to negotiate with Google. Now I’m calling on the publishing industry to negotiate with Google’s competitors. Authors and publishers should be forced—either by the court, or through legislation—to grant rival companies like Amazon and Microsoft the same rights that they’re giving Google. Not only would this likely satisfy the government’s antitrust concerns, it would create a truly vibrant market for books. Google didn’t create a great Web search engine because it alone had access to everything published online; it created a great Web search engine because all its rivals had access, too, and Google was forced to think of an entirely new way to approach searching the Web. The story is no different for books: No single company should be given exclusive legal access to the printed word. That would be a disaster for authors. More importantly, it would be a disaster for readers as well.