The ABC’s of GBS: Part 3
Google Library, The Lawsuits, and Is Charkin Barking Up the Right Tree?
Below, Evan Schnittman shares his opinion, based on his knowledge as a rights guy, on Google Library. This isn’t Oxford University Press’s official stance – but represents just one of the many opinions floating around our office on this very tricky subject.
To avoid confusion lets get everyone on the same page. Google Library (GL, as opposed to Google Book Search) is a program that has scanning facilities set up at 17+ libraries around the globe. These facilities digitize the print books in a given collection and then index the text so that it can be discovered by Google’s search engine. The search engine displays only a snippet (250 characters or so) of the book when there is a search hit, if the book is in copyright. In exchange for sharing their collections, Google gives a digital file of each book to the library for their archives. GL should not be confused with Google Book Search (GBS), which is a publisher sanctioned program in which Google licenses the right, from publishers, to digitize, index, and display 20% of a book for the purpose of making it “discoverable” in Google’s search engine. See The ABC’s of GBS, Part 1 for a complete description.
Over the last couple of weeks there has been some buzz in the tech and publishing blogosphere over a stunt pulled by Macmillan’s UK-based CEO Richard Charkin at BEA (Book Expo America). In an effort to illustrate his view on GL, Charkin went into the Google stand with an accomplice, took two laptops, and waited nearby to see what would happen (see Charkblog). After some time, a Google rep asked what was going on – Charkin pointed out that he was doing exactly what Google was doing to publishers. As “there was no sign that said ’do not steal the laptops,’” and, therefore, he felt the right to walk off with one. While I found this extremely amusing as a prank – (Charkin Punk’d Google!) I think the effort missed on a major point.
Google interpreted copyright law in a search engine friendly manner and decided that the act of digitizing books found in libraries, indexing that content, and then displaying only the smallest “snippet” of that content (250 characters), was no different than what they do spidering the internet and displaying snippet results. This is where the world of the internet and book publishing collide culturally – Charkin sees this as theft, Google sees it as how they operate on the internet – indexing content in order to make it discoverable without having to ask permission. However, this is not the most disturbing aspect of the GL program. Had Charkin taken the laptop and given it to a third party – he would have been closer to what is going on with GL.
Even better, imagine Charkin had gone to one of the thousands of server farms that Google employs and convinced a few to allow him to extract Google’s sacred and vaunted search algorithm from their servers. His promise to them would be that he would only use the algorithm to make his business better at achieving higher search results and he would give a copy of the algorithm back to them so they could archive it. (You need to pretend for a minute that Google’s search algorithm is actually on servers that aren’t in their direct control.)
Google’s reaction to this would have been swift and severely punitive. Google puts their search algorithm on third-party servers with the understanding that that a server farm will have use and access to the algorithm (Google Intellectual Property) only in the manner that was agreed (keeping the search running, etc). The server farm would not have any rights to the algorithm – even though it came in the server that Google set up at the server farm. Copying the algorithm, even for the seemingly innocent purpose of archiving the algorithm for posterity would not be permissible in any way or form.
As absurd as this example may be, this is what Google and its institutional partners are doing in the GL program. Google is going to owners of a physical manifestation (books) of Publisher and Author intellectual property and using the intellectual property in a manner not considered in the original agreement (sale) of the book. Google isn’t just digitizing and indexing the books – they are then giving the files to the library – all without a license to do so from the IP owners.
The problem is that as lofty as the intentions of the libraries and Google may be, they do not have the right to do what they are doing. Libraries do not have to right to give their books to anyone to digitize, for any purpose, without the explicit permission of the copyright holder (they have the right to make one single copy – not two, just one – themselves for the purpose of archiving). Google doesn’t have the right to digitize and index the content without permission either – and they especially don’t have the right to digitize the content and then give it to a third party!
This last point is where things have really gone pear-shaped. Google and libraries are doing something they need a license to do – and rather than ask for one, they are asking the copyright holders to provide a list of properties they wish to protect or not include in this program. Neither Google nor the participating libraries are following the well established and longstanding protocol of rights licensing. By pushing the onus of identifying individual copyrights that should NOT be included in a program without license, they are turning upside down the very nature of licensing.
To put a finer point on this – OUP (or any other publisher for that matter) does not produce a list of their copyrights they DO NOT WISH TO LICENSE and send the list to every potential licensee in the world saying “please do not license the following titles.” Publishers are not being asked to review lists of titles found in libraries and decide which they want in GL – they are being asked to provide a list of titles to GL that should not be included. It’s the alternate universe of intellectual property management where Mr. Spock has that funky Fu Manchu mustache.
Google Library can be an important program for publishers and authors when we find a way back to the normal Spock universe of content licensing. The wholesale digitization and discoverability of the most important content in our collective intellectual history is a really amazing concept. While publishers applaud the ambition, vision, and strength of resolve Google has shown, we need to live in a world that respects all kinds of property rights – physical and intellectual. Until then, we will not allow Google or anyone else to use our content as they see fit – unless they ask.
Mr. Charkin, next time submit a request for a laptop from Google – they may just say yes.
Evan Schnittman is OUP’s Vice President of Business Development and Rights for the Academic and USA Divisions. His career in publishing spans nearly 20 years and includes positions as varied as Executive Vice President at The Princeton Review and Professor at New York University’s Center for Publishing. He lives in New Jersey with his wife and two children.