The first legal battle in what some might call the Google-ization of America was joined last week when three authors and the Authors Guild, a trade organization with 8,000 members, sued the Internet giant for “massive copyright infringement.” The source of the dispute is what Google calls its Print Library Program, which aims ultimately to provide a searchable library of all the world’s printed books.
Google, whose stock has been soaring since its successful IPO last year, never has been known for modest aims but even so, all of the world’s books takes in a lot of territory. Recognizing this, the company has limited its first efforts to books in English and began by making agreements with three large university libraries – Harvard, Stanford and Michigan – to scan their huge collections into a database.
According to Google’s website, their “aim is simple: to make it easier to find relevant books. We hope to guide more users to books – specifically books they might not be able to find any other way – and while carefully respecting authors’ copyrights.”
This sounds pretty benign. If knowledge is power, then all power to the people through Google. Vox populi, but with commercial messages. The authors in question, Daniel Hoffman, former U.S. poet laureate; Herbert Mitgang, author of a biography of Abraham Lincoln; and Betty Mills, a children’s author, naturally see things differently.
Paul Aiken, executive director of the Authors Guild, says, “Unlike reviewers who may use a short section of a text, Google is scanning in entire books, every word. What they’re planning to do is definitely for commercial gain and profiting from a text is something the copyright law restricts to authors. We’re not opposed to having books available online, but that should be the author’s decision. What’s more, Google will have control of the digitized text once they scan the books and the libraries will be getting digitized text back which they can then share with whomever they like.”
A summary of copyright law: A copyright may be received by any author by applying to the government copyright office and aims to protect original works “fixed in a tangible means of expression.” Like a book. For works created after 1978, copyright protection generally lasts for the life of the author plus 70 years, after which the book enters the public domain and may be used or copied at will.
Sabrina Stavish, a partner in the Denver intellectual property law firm of Sheridan Ross, says, “Part of the problem is that we’re always playing catch-up with the law, which was written before the Internet existed. What we’re trying to do now is apply new technology to an old law. But what it comes down to here is that you’re still copying text, whether it’s digitized or not.”
The hub of the dispute is Google’s claim that they’re protected by the “fair use” clause of the copyright law because they’re making available only “snippets” of the works they’ll scan. This clause, which generally applies to libraries and periodicals, allows copyrighted work “to be used for such purposes as criticism, comment, news reporting, teaching, scholarship or research.”
In a lofty statement quoted in The New York Times, Google said, “We regret that this group has chosen litigation to try to stop a program that will make books more discoverable to the world.” Google also says they will offer authors the chance to opt out of the program if they choose.
Aiken says Google has it backward. “It’s unfair to require authors, who might not be aware of the library program, to pre-emptively protect their rights rather than requiring the user to first gain approval before scanning a copyrighted work.”
No one knows how successful the authors’ suit will be, but Stavish says they have a good case.
“I think that if the case is done right, the Authors Guild should win,” she says. “The basic issue is that you can’t replace the market for a copyrighted work. The fair-use system is set up with various factors, including whether or not use of the work is for a commercial purpose. The law allows, for example, use of small sections of a book for purposes of a review or education, but obviously Google is a commercial enterprise. Even if they say they’ll only make small sections available, Google plans to scan in entire books without the author’s permission. In my opinion, that’s copyright infringement.”
To some of us it seems ironic that there’s any question about using copyrighted literary works when one remembers the uproar over Napster downloading songs without paying for the privilege a few years ago. Any radio or television station must reimburse the owners of any song or sitcom aired, so why, the plaintiffs in the suit seem to be asking, should literature be any different? Where are the residuals for writers?
Yet while the Google program is new and larger than others, the issue of printing or downloading copyrighted works is nothing new. Everyone from librarians to lit-bloggers seem to feel entitled to the free use of material published in magazines, journals and books, even though the original publishers may have paid for use of the work.
And authors are at the bottom of the food chain. After all, if a library buys a copy of a novel that is then loaned out to hundreds of readers who would otherwise have had to buy it, doesn’t the author in effect lose income? Librarians might claim with some justice that they’re building audiences for literature, but it’s not really a stretch to think that they are also costing authors sales. Most of us accept this with alacrity, but the Google controversy puts everything in a very different arena.
Google intends to sell ads on their various search pages as part of their print project. One also suspects that Harvard, Stanford and Michigan were paid handsome sums to allow access to their collections. After all, it’s not as if just anyone can walk into any of these institutions and take out a book or even sit quietly in a reading room and consider the universe.
It is more than a little disturbing, therefore, on a number of fronts to see distinguished university libraries selling their collections to the highest bidder who will then go on to hustle advertisements on their site. One can imagine the buzz: “Now, catch Harvard libraries and Pepsi on Google.” Or, “Maybe you couldn’t get into Stanford, but you can get into their library on Google.” The possibilities are endless.
I should add, in the interests of full disclosure, that several of my books are available at the libraries mentioned above, but this goes beyond personal considerations. Bookstores, authors and the public in general should be concerned about the erosion of literary rights. Writing is hard, slow work, and few authors earn significant sums from their books. It adds insult to injury to have them sold without permission to commercial companies.
What’s more if Google is in the game, can Yahoo be far behind? No matter how Google may try to justify their new program, it’s hard to disagree with Stavish that it’s copyright infringement, pure and simple.
David Milofsky is a Denver novelist and professor of English at Colorado State University in Fort Collins.
