Question:  "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 blog 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 holders.

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 favor.

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?


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