Paul Aiken, Authors Guild
Copyright Society
October 24, 2005
Last Thursday, Google delivered stunning financial news. It reported a
700% increase in third quarter profits. Its earnings now dwarf those of
another company that relies chiefly on advertising for its income, the New York
Times. The Washington Post reported that Google’s earnings are now
more than 10 times that of the New York Times. Google’s market capitalization,
now exceeding $100 billion, is 25 times that of the New York Times. Google’s
market cap even exceeds that of Time Warner -- that combination of AOL, Time
Warner cable, film studios, TV and radio networks and book and magazine publishing
-- beating it out by 25%.
In the book industry, some of us think of Barnes & Noble as big. Google
is 40 times bigger. Or we think of Amazon as our Internet champ. Google
has its value five times over. Yahoo is in the same business as Google,
pretty much, and eBay is no slouch as an Internet company. Combined, they’re
worth about the same as Google.
And good for Google. Really. It seems they’ve found the best
Internet business to be in: searching the Internet. They’ve come
up with clever search algorithms, securing hard-earned patents to protect some
of them. They’re pursuing their business aggressively and by all
accounts intelligently.
We’re all for profit. Nothing warms an author’s heart more
than healthy semi-annual royalty statements. Helps pay the rent and put
the kids through college. It keeps the author plugging away, trying to
create more works that readers will value. Profit also puts a spring in
the step of book publishers. It encourages them to take a chance on a new
author, or to give a good author with a so-so sales record another shot. Profit
is good.
So it’s cheering news that Google sees value in feeding copyrighted books
by the million into its banks of computers, that teams of Ph.D.-laden mathematicians
and engineers would be tweaking their search algorithms, to help its users find
book excerpts. Google seems to have figured something out: there’s
a demand for searching those books, a demand that warrants the investment of
tens of millions of dollars. A demand that Google is determined to satisfy,
because Google, a sensible, profit-seeking enterprise, believes its investment
will pay off in increased visitors to its site, and increased ad revenues. Google
senses a competitive advantage.
We get it. We bet Google is right. If books were digitized and searchable
on the Internet, we bet Google could make a pretty penny by allowing its legions
of users to search that database. And what a mind-boggling database! An
assemblage of the nation’s copyrighted books, the result of the efforts
and investments of hundreds of thousands of authors and thousands of publishers,
served up in handy excerpts by Google’s generous computers.
But here comes the bad part. Google says that its copying of these books
-- that its scanning of countless copyrighted volumes, then using optical character
recognition technology to digitize the text of those works to create files to
assemble into a new, unimaginably vast database, surely one of the largest databases
ever assembled -- that all of that copying and use of these works, would be fair
use, so it doesn’t need a license from anyone for this copying. For
good measure, it’s handing over a digital copy to its partner libraries,
and telling them its OK to post the works to their websites. That, too,
I guess, is fair use.
Since there’s no license needed, in Google’s view, Google doesn’t
have to give pesky rightsholders contractual assurances about the security of
their database. Could a backup tape go astray from Google or one of its
partner libraries, unleashing a couple hundred thousand copyrighted works onto
the Internet? Sure seems possible. We’re asked to trust that
that’s under control. The list of companies, meanwhile, that lose
critical data grows daily. What successes do hackers have at breaking in
to the sites of Google and its partner libraries? There’d be no contractual
need to report this, so it would likely go unreported. Security experts
tell us that most data losses to hackers go unreported, and we don’t doubt
it. No contract, no reporting, no control. “Trust us” security.
What about other companies that want to do the same thing? When we first
filed suit, we mentioned to reporters our concern that others would see the same
business opportunity and join in. We mentioned the obvious players: Amazon.com,
Microsoft, Yahoo. Yahoo, of course, has since jumped in, but they tell
us they’re seeking permission to use copyrighted works. But if Google
gets away with it’s vast database, Yahoo won’t stand still. They’ll
make their own database, just to keep pace. Microsoft, too, has a search
engine to feed and the resources to do so. Amazon has been investing
heavily in its search engine, and has a certain interest in books.
So we might have four or more companies, each pursuing private gain, happily
digitizing the stacks of libraries. We’d have to trust each of
them, naturally, and no doubt their partner libraries, not to misplace backup
tapes or let down their guard against hackers.
That seems kind of inefficient. Wouldn’t it make more sense for,
say, Yahoo and Microsoft to buy the digital database from Amazon? Still
fair use, right? Copyright law wouldn’t impose such a wasteful burden
of redigitizing on each of these companies. And there are dozens of other
search engines, large and small. Seems “unfair” to cut them
out.
Specialized databases wouldn’t be far behind. WebMD would want to
digitize a couple medical libraries for excerpting by its users. Fair use,
of course. Veterinarians, chemists and electrical engineers have their
needs and websites, too. These digital databases would all be secure, not
to worry. Trust us, but don’t audit us.
What about uses by the partner libraries? Again, the only contractual obligation
imposed on libraries – at least in the sample available to us from the
University of Michigan contract with Google – allows the University of
Michigan to post the works at its website. No mention in the contract of
limiting browsers to so-called fair use snippets. The contract also contemplates
sharing the works with other academic libraries. No biggie.
Fair use is a handy concept. Just keep the excerpts shortish and the databases
big. And watch the copies proliferate.
So Google’s found the best way to make money on the Internet: searching
the Internet. To make copyrighted books fit into its business model, it
wants to pull books onto the Internet. It’s a fine idea, mostly,
but we’re saying you can’t simply cut authors and publishers out
of this venture. Do it the right way, with proper contracts and proper
controls. We want to be dealt in. It’s the best business
on the Internet. |