"Google, why are you copying all the copyrighted books
at major libraries?" Google:
"Because that's where the books are!"
[ Editor's note: This was originally posted as
a comment by Daniel Brandt on Seth Finkelstein's
on August 22, 2009. Mr. Finkelstein was curious that the item about the
Internet Archive, Amazon, Yahoo, and Microsoft forming a coalition to
oppose the Google book settlement made so many big headlines in the major
media as if it had suddenly sprung forth from a historical vacuum. ]
When the Google Library Project was announced in December 2004, I
immediately attempted to raise the question of reader privacy with
the American Library Association. I knew that the ALA and the ACLU
were already leading the good fight in the reader-privacy battle in
connection with the Patriot Act, National Security Letters, and
local libraries. In the end, they were successful.
But the issue of Google and privacy didn't connect with the ALA
until more than four years later. Now privacy is recognized as a
problem with the book settlement, simply because it says nothing at
all about reader privacy. Why did it take so long? It's because Google
spent a lot of effort to seduce librarians around the country with their
library outreach program. In 2004-2006 librarians were gaga over Google
and its secret scanning technology. Cookies were something to munch on,
and Google was God.
Disgusted with the ALA, I turned my attention to the University of
Michigan's library, the largest Google scanning project. All I
found was hype, mostly from librarian John Wilkin and UMich
president Mary Sue Coleman. "Going as fast as we can with the
traditional means of doing this, it would take us about 1,600 years
to do all 7 million volumes," Wilkin told the press. "Google will
do it in six years." Wow, impressive stuff! The media ate it up,
and librarians everywhere did too.
Unfortunately, lips were sealed. Wilkin wouldn't discuss the
technology or the details of the agreement, and eventually admitted
that Google had required non-disclosure language.
Nevertheless, UMich is a public institution, and Michigan's state
freedom of information law yielded a copy of the secret agreement.
It disclosed that Google had indemnified UMich against any legal
challenges that might arise from the fact that Google was scanning
everything in-print books, so-called "orphan" books, public
domain books everything. So much for many decades of
international copyright law. The indemnification clause, which was
also present in confidential agreements I requested from the
University of California and the University of Texas, caused
bulging eyeballs among attorneys for the Authors Guild and the
Association of American Publishers. They were impressed with how
much money Google was willing to risk to keep scanning everything
uninterrupted. Presto, Google was sued over copyright issues.
Now it's four years later, and there is a big, fat, complicated
settlement at issue. If you search for "attorneys fees" in these
300 pages, you will see that Google has agreed to pay up to $30
million for the plaintiffs' attorneys.
And it's four years later for the scanning also. Google already has
a reported 10 million books scanned from various libraries. Google
Books executive Dan Clancy said recently that "We're going full
steam ahead, no matter what happens with the settlement."
Do you see what's happening here? If Google didn't have the money
in the bank to convincingly indemnify universities against any
copyright challenges, and if they weren't in a position to offer
millions to the plaintiffs for a settlement, then a sustained legal
challenge under copyright law would have resulted in a preliminary
injunction that would halt most library copying until copyright
issues were resolved by the Supreme Court. That's what should have
happened, because that's the only thing that's fair to rights
Willie Sutton robbed banks because "that's where the money is," and
Google is doing everything possible to keep scanning libraries
because that's where the books are. If Willie had Google's
arrogance, he could have convinced juries that he was doing banks a
The libraries that are allowing Google to scan copyrighted material
have nothing to lose, while the Authors Guild and the Association
of American Publishers have riches and power to gain. The whole
thing has been a debacle because the media bought Google's clever
mixture of hype and non-disclosure for four long years.
It's not surprising that the media gets excited over the "battle of
the digital titans" meme now that Microsoft and Yahoo have joined
Amazon in opposing the settlement. It's what the media does best.
After all, I had to send three emails to get the confidential
agreements from Michigan, California, and Texas, and that's far too
much trouble for the mass media. That's why they never thought of
it, and why they never read the agreements when I made them
available, and why today they have trouble appreciating the
dimensions of what Google is doing. What else is news?