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Authors Guild Gags on Google Library

UPDATED: It's a phrase David Drummond is getting used to: massive copyright infringement.

Google's general counsel faces a new lawsuit over its Google Library program. On Tuesday, the Authors Guild filed a suit in federal court, charging that Google's plan to digitize the entire collections of five libraries violated the copyrights of those books' authors.

The Authors Guild, an association of published authors, is asking for damages and a halt to any more book copying.

Google Print might have been hailed by the publishing world as a great new marketing tool, if only it weren't for Google Library.

Google Print was launched in October 2004, and Google said it offered users access to another level of information on the Web, a digitized and convenient alternative to visiting to the library. The search Goliath made agreements with a majority of U.S. publishers under the program, and, among other things, those agreements specified how much of any book it could show a searcher.

In the Library project, Google plans to scan all books held by the libraries. The service makes books in the public domain available in full to a searcher. For library books that have an agreement with publishers under Google Print, it will show searchers whatever it's agreed to.

For library books where it doesn't have an agreement with the publisher, it will show only a snippet of text containing the keyword, plus bibliographical information and a link to an online bookseller.

The company ran afoul of some of its publishers and its trade organizations when it announced the Google Library Project on the very the day Google Print went live. It turned out that Google had made separate agreements with five libraries, including the University of Michigan and the New York Public Library, to scan every book on their shelves.

Publishers were worried that their copyrighted material might be bypassed or circumvented. In response, Google temporarily suspended scanning of library books under copyright, in order to give publishers time to respond to two new options. Publishers could give Google a list of books they want added to their accounts if Google scanned them from the library; or, publishers and copyright holders could give the company a list of books they didn't want scanned.

In an argument that mirrored that of critics of CAN-SPAM, the congressional act regulating commercial e-mail, the American Association of Publishers protested, saying they shouldn't have to opt out of the Google Library project. Google still is negotiating with the publishers, although it reaffirmed its plan to resume copying library books under copyright in November 2005.

"We believe it's very consistent with copyright law and fair use," Drummond, Google's general counsel, told internetnews.com.

"Most authors would love to have people discover their works," he added. "You have the world's most-used search engine that will have that material in it. If someone is interested in a topic, and the book has information on that topic, it increases the chances that it will be found."

Paul Aiken, executive director of the Authors Guild, said that's not the point. He said that while there's evidence that services such as Amazon.com's Search Inside the Book improve sales for at least some authors, copyright law should be obeyed. And that means no copying without permission.

"The central fact is that Google is copying, and they're a commercial enterprise," he said. "They're not getting permission, and this is a licensable right."

But this game should be played under Internet rules, argued Jonathan Band, an attorney specializing in intellectual property issues in digital content. In an analysis for the legal newsletter "E-commerce Law & Policy," Band wrote that Google Print and Google Library meet the fair use guidelines of the U.S. Copyright Act, especially as they relate to search.

First, he argued, search engines constantly make copies of Web content and store the information in their databases. "Significantly, the search engines conduct this vast amount of copying without the express permission of the Web site authors," he wrote. "In other words, the billions of dollars of market capital represented by the search engine companies are based primarily on the fair use doctrine."

Band said that search engines rely on the concept of implied license for their Web indexing, assuming that webmasters have posted information online because they want it to be found. He pointed out that Web masters could place exclusion headers in their site code, telling crawlers to keep off.

"By giving publishers the opportunity to opt-out of the Print Library Project, Google is replicating the exclusion feature of the Internet," he concluded.

When the Authors Guild's Aiken stopped laughing at Band's argument, he responded by saying, "Anyone who is on the Internet knows very well that things get indexed by search engines. People out there who are putting up Web sites are in a completely different category than people who have written books over the last 50 or 60 years. We're talking about a completely different environment."

Internet industry cheerleaders agree that it's a different environment, but they say there's no going back.

The Electronic Frontier Foundation (EFF) released a statement applauding Google's digitization efforts, saying they were the digital equivalent of a library card catalog. "Just as libraries don't need to pay publishers when they create a card catalog, neither should Google or other search engines be required to when they create an improved digital equivalent," Fred von Lohmann, EFF senior staff attorney, said in the statement.

"[The move to digitized content] is driven by user interest," Chris Travers, CEO of search service Find.com, told internetnews.com. "They want it this way. We need to figure out how to stay in business and deliver it." Among other content types, Find.com crawls XML feeds provided by publishers of premium databases, and searchers can access such content on a pay-per-view basis.

Travers believes that when people can discover new kinds of content, they'll often be willing to pay for it. He said the Authors Guild suit was the shortsighted reaction of "old media."

"The threat of the digitization of information is that the old world is not going to be there, even if you want to hold onto it. Change is coming, and it won't be good for everybody," he said, "but those who embrace it have a better chance of succeeding."

Aiken responded that the authors he's talked to aren't opposed to the idea of making the texts of their work searchable on the Internet. "They're opposed to doing it without a license," he said. "It should be something that's licensed and has reasonable controls."

The Authors Guild, the American Society of Journalists and Authors, and the National Writers Union won an $18 million settlement in a similar class action suit against newspapers and magazines that published freelance writers' work, then licensed that work to electronic databases without their permission.

Defendants included electronic database providers Lexis/Nexis, Reed Elsevier, Dow Jones Reuters Business Interactive and EBSCO Industries, as well as publishers The New York Times Company and The Copley Press. They sued in 1997 and settled in March 2005. The settlement was extended in August to cover articles licensed to Amazon.com and HighBeam Research, a specialized search service that charges for access to reports and studies.

Why didn't Google stick to scanning out-of-print books for the Library project? Evidently, the company simply didn't want to wait for the leisurely publishing industry to get with the program. Said Drummond, "We thought it would be a better and faster way to get all the material. We think it's important to have as much of the information available as we can."

Updates prior version to correct names of David Drummond and Jonathan Band.