Still Searching

Three years of legal wrangling between Google and a group of publishers came to an end Tuesday, but the $125 million settlement left unresolved the question of whether Google violated the law by digitizing copyrighted material without permission from rights holders.

The two lawsuits brought by authors and publishers challenged Google’s ambitious Book Search program, which has thus far digitized more than 7 million books from participating libraries. Authors and publishers had challenged Google’s contention that posting “snippets” of copyrighted works online was permissible under “fair use” standards, and the parties still disagree on that salient legal question.

Patricia Schroeder, president and chief operating officer of the Association of American Publishers, one of the plaintiffs in the suit, said both parties thought that resolving the litigation was more important than fighting out some of the larger -- and lingering -- legal questions about copyright in the digital age.

“We could have all fallen on our swords dueling to the last drop of blood over what is fair use,” said Schroeder.

Under the settlement, Google will pay the authors and publishers who have already sued and cover their legal fees. Perhaps more importantly, in the eyes of the plaintiffs, Google will use part of the settlement money to create a book registry that allows rights holders to be compensated for their participation in the Book Search program.

Siva Vaidhyanathan, an associate professor of media studies and law at the University of Virginia, said the book registry will improve scholarship by clarifying who owns the rights to works. That said, Vaidhanathan suggested that the settlement fell short of what many saw as the promise of the legal challenge.

“When this whole project started four years ago, there were a lot of people declaring Google was striking a major blow for fair use and freer content, and this settlement I think shows there was a bit of hyperbole attached to those claims. Clearly neither Google nor the publishers wanted to roll the dice on that question,” said Vaidhyanathan, author of the forthcoming book The Googlization of Everything.

Writers, Publishers to Get Paid

Not surprisingly, compensation has been a key sticking point for writers and publishers who have criticized Google Book Search. The settlement provides several potential revenue streams for both, including future revenues from advertising and book sales. While greater exposure for their works means writers stand to make more money in the future than they might have otherwise, they could receive as little as $60 for past instances in which Google copied their works without permission.

Peter Petre, an author, said the compensation arrangement outlined in the agreement is similar to the arrangement that the American Society for Composers, Authors and Publishers offers to the music industry. ASCAP distributes royalties to musicians when their works are broadcast or performed.

“What makes me most excited about this deal is not the $60 -- it will buy a round of drinks. [But] this agreement creates the writers’ equivalent of ASCAP; that gives me hope, and it makes me feel secure about online displays of my work,” said Petre, treasurer of the Authors Guild, a copyright advocacy group for authors that joined the suit.

Agreement Makes More Content Available

Google’s digitization project began in 2004 with the help of several leading libraries, including Harvard and Stanford Universities, the University of Michigan at Ann Arbor, the University of Oxford and the New York Public Library. All the libraries agreed to let Google digitally scan millions of their books, including many that are copyrighted.

Google’s stated goal, apart from improving the breadth and value of its powerful search engine, was to spread the knowledge contained in the world’s greatest libraries. There have been limits, however, to what Google could share with users. Absent explicit agreements with authors and publishers, Google has offered only short “snippets” -- a couple of sentences -- of material that falls outside the public domain. As such, only about 2 million of the approximately 7 million digitized books are available in “preview” format, which allows users to see up to 20 percent of the content of a book.

The settlement agreement, which still requires court approval, would allow Google to put its entire digitized library in “preview” format. Furthermore, all public libraries in the U.S. will be able to offer single terminals where they can access full-text versions of the archives for free. Libraries that paid for subscription services would be given broader access -- beyond single terminals -- to full-text versions of the digitized materials.

“If I am a student or I’m a guy using a small town library, suddenly my computer screen or my library's computer screen gives me access to the entire University of Michigan collection,” Petre said.

The details – including cost -- of the proposed subscription service have yet to be outlined by Google.

Laine Farley, interim executive director of the California Digital Library at the University of California System, said it’s still unclear whether universities that supplied books for digitization will be given free or reduced cost subscriptions. California’s 10 campuses supplied hundreds of thousands of books to Google for the project.

“We expect that there will be some acknowledgment of our contribution to the project, and it remains to be seen how that relates to the subscription itself,” Farley said.

The participating institutions have already reaped some tangible benefits, not the least of which is the digitization of their materials. Even in its current form, Google Book Search has changed research by adding newly searchable dimensions of scholarly works, Farley said.

“It opens up the contents of these books in a way that they’ve never been ever available in the past, and we have stories from scholars and students about things they’ve been able to find,” she said. “Just in my own personal interest I’ve been able to find things that I’ve never been able to locate before.”

Peter Givler, executive director of the Association of American University Presses, was an early critic of Google’s digitization project. Gibler questioned Google’s interpretation of copyright law, even though several of the association’s members were participants in the project.

Gibler said Tuesday that he was still digesting the 141-page settlement agreement, but he said he was encouraged that it appears to protect writers and publishers while also promoting broader distribution of printed works.

“There’s a pile of reading here for me and for our lawyer, but I assume it’s good news," he said.

Securing Google's Dominance

What seems without question is that the settlement is one more step toward securing Google’s dominance in the search engine industry and the Internet writ large. For Vaidhyanathan, who has questioned Google’s commitment to preserving user privacy, the company’s growing sphere of influence is potentially troubling.

“I’m worried that Google is fast becoming our sole access point for information seeking," he said, "and I think that’s a dangerous and unhealthy situation."