Open Access News

Jeffrey Toobin, Google's Moon Shot, The New Yorker, January 29, 2007. This is the most comprehensive article I've seen yet on the practical details of Google's book scanning project and the legal issues it raises.  Excerpt:

...No one really knows how many books there are. The most volumes listed in any catalogue is thirty-two million, the number in WorldCat...Google aims to scan at least that many. “We think that we can do it all inside of ten years,” Marissa Mayer, a vice-president at Google who is in charge of the books project, said recently, at the company’s headquarters, in Mountain View, California. “It’s mind-boggling to me, how close it is. I think of Google Books as our moon shot.” ...

Like most federal lawsuits, [the cases against Google] appear likely to be settled before they go to trial, and the terms of any such deal will shape the future of digital books. Google, in an effort to put the lawsuits behind it, may agree to pay the plaintiffs more than a court would require; but, by doing so, the company would discourage potential competitors. To put it another way, being taken to court and charged with copyright infringement on a large scale might be the best thing that ever happens to Google’s foray into the printed word....

[When the started scanning books, Page and Brin] were less interested in making it easy for people to obtain the full texts of books online than in making accessible the information those books contained. “We really care about the comprehensiveness of a search,” Brin said. “And comprehensiveness isn’t just about, you know, total number of words or bytes, or whatnot. But it’s about having the really high-quality information. You have thousands of years of human knowledge, and probably the highest-quality knowledge is captured in books. So not having that—it’s just too big an omission.” ...

Jim Gerber, Google’s director of content partnerships, told me. “The Internet and search are custom made for marketing books. When there are a hundred and seventy-five thousand new books each year, you can’t market each one of those books in mass market. When someone goes into a search engine to learn more about a topic, that is a perfect time to make them aware that a given book exists. Publishers know that ‘browse leads to buy.’ ” (Google says that it does not take a cut of sales made through its books site.) ...

Google will not reveal how much it is spending on the books project. In 2005, Microsoft announced that it would spend two and a half million dollars to scan a hundred thousand out-of-copyright books in the collection of the British Library. At this rate, scanning thirty-two million books—the number in WorldCat’s database—would cost Google eight hundred million dollars, a major but hardly extravagant expenditure for a multibillion-dollar corporation....

[A] settlement [of the lawsuits] that serves the parties’ interests does not necessarily benefit the public. “It’s clearly in both sides’ interest to settle,” Lawrence Lessig, a professor at Stanford Law School, said. “...[I]f Google gives [the publishers] anything at all, it creates a practical precedent, if not a legal precedent, that no one has the right to scan this material without their consent. That’s a win for them. The problem is that even though a settlement would be good for Google and good for the publishers, it would be bad for everyone else.” ...

Google’s advantage may well be cemented if the company settles its lawsuits with the publishers and authors. “If Google says to the publishers, ‘We’ll pay,’ that means that everyone else who wants to get into this business will have to say, ‘We’ll pay,’ ” Lessig said. “The publishers will get more than the law entitles them to, because Google needs to get this case behind it. And the settlement will create a huge barrier for any new entrants in this field.” ...

“Google didn’t get video search right —YouTube did,” Tim Wu, a professor at Columbia Law School, said. (Google solved that problem by buying YouTube last year for $1.6 billion.) “Google didn’t get blog search right —technorati.com did,” Wu went on. “So maybe Google won’t get book search right. But if they settle the case with the publishers and create huge barriers to newcomers in the market there won’t be any competition. That’s the greatest danger here.” ...

The dual status of several leading publishers as both partner and adversary to Google underscores their desperate need to hedge their bets in a digital world that they have yet to master....[T]rade publishers, in particular, have been slow to embrace new technology, especially for out-of-print books; Google will almost certainly bring more attention to these works than their own publishers have.

The law is supposed to resolve issues like these —between self-interested parties with reasonable claims and legitimate arguments. But the rules of copyright are so ambiguous, and the courts so slow, that the judicial system serves largely to implement the law of the jungle....