Google is gearing for what could be a watershed legal battle with the global book publishing community and has issued subpoenas to major publishers, as well as rivals Yahoo, Amazon and Microsoft, requesting information about their book scanning projects.
The requests came as Google prepares to defend itself against a lawsuit filed by the Association of American Publishers and the Authors Guild over its plans to make portions of copyright books available online.
Google wants documents detailing every book the companies have made available online or plan to by the end of 2009.
Legal Scrutiny
Google is embroiled in litigation with book authors and publishers over the Google Book Search program, in which Google has indexed millions of books and made them fully searchable–though it displays only snippets of text for works still in copyright. Despite this limitation, those involved in producing books believe that Google is illegally attempting to profit from their work. They want Google to seek licenses from publishers before making the books available for searching, but Google continues to insist on an "opt-out" approach to the program.
The Internet search leader sent subpoenas last week to Yahoo, Microsoft, the Association of American Publishers, HarperCollins Publishers, Bertelsmann’s Random House and Holtzbrinck Publishers. A similar request went to Amazon as well.
The companies can choose to mark documents they turn over to Google later this month as confidential. A protective court order specifies Google can only use confidential information for its legal defense — not to gain competitive advantage or to soup up its own technology.
The search leader has made it clear that it wants to index all of the works in print, including copyrighted works. Under Google’s plans, web users would be able to view snippets of the contents of copyrighted works, in a similar way that Amazon enables visitors to browse portions of selected titles.
However, Amazon and others have obtained permission from publishers and authors before allowing access to selected sections of books and most of the books on the site do not have such access.
Yahoo and Microsoft support a project called the “Open Content Alliance,” a project which lets users to browse contents of copyrighted works for which permission has been granted by authors and publishers, while major publishers have also launched their own online browsing projects.
Fair Use
The Google project, however, is the most far reaching and intends, with the aid of major US libraries, to encompass all published works, including those still in copyright.
McGraw-Hill Cos. and the Authors Guild, along with other publishers and authors, contend that a Google project to digitize the libraries of four major U.S. universities, as well as portions of the New York Public Library and Oxford University’s libraries ignores the rights of copyright holders in favor of Google’s economic self-interest.
Google is being sued by the Association of American Publishers, which represents five major publishers, and the Authors Guild, a trade group representing about 8,000 writers, over its plans to make portions of copyright books available online for searching and reading.
The publishers support a separate book-scanning effort, known as the “Open Content Alliance,” that was conceived by Yahoo and the non-profit Internet Archive, and that seeks explicit permission from copyright holders. The alliance has promised to make books available to all search engines.
According to subpoenas filed in the U.S. District Court in New York, include requests for lists of all authors, publishers and copyright holders, and the copyright status of each book scanned by Yahoo, Amazon.com and the other companies — as well as all contracts or communications with publishers, copyright holders and libraries.
Google intends to find out through its subpoenas exactly what criteria the rival scanning projects intend to use judge what constitutes fair use, as well as financial details of how book sales would be affected and digital rights management features.
Google asked the companies to produce "documents sufficient to show you possess the legal right to include each book" in the scanning projects, as well as companies’ own analyses of copyright infringement and fair use issues.
The search leader asked Amazon.com and others to produce their fiscal forecasts for digital book projects, including costs, revenue and the extent to which the projects will eat into physical book sales. Google also requested documentation for technical details such as digital rights management controls, indexing and search features.
Similarly, Google wants to know more about the work of the Open Content Alliance, a group that includes both Microsoft and Yahoo. The OCA is also busy scanning millions of books from libraries and publishers, with one big difference — where copyrighted works are concerned, publishers need to "opt-in."
In a statement, Google said that confidential documents it is requesting would be filed under a protective order that would tightly restrict who could see them.
A Microsoft spokesman said the Google subpoena had not yet been served. Amazon.com declined to comment. Officials at Yahoo declined to comment on pending legal matters, Microsoft and the publishers group did not immediately return calls for comment.
Still, Google’s requests may be hard to fulfill. According to librarians participating in Google’s project, the legal status of some older books can be hard to determine.
Efforts Proliferate
As part of its book project, Google returns snippets of text contained in books along with other search results. People who want to read an entire book can buy it or obtain it through a library. People can also pay a fee and read some books online.
The companies named by Google in the court filings have, so far, limited book-scanning endeavors to titles that are either no longer protected by copyright law or those they have express permission to use.
So far, several major U.S. universities, including Harvard and the University of California system, have signed on to let the company scan the contents of their libraries. Google also plans to make works no longer bound by copyright law available on the Internet in their entirety, including books from the New York Public Library.
On its site, Web retailer Amazon.com lets shoppers search inside books and read whole pages of works with publishers’ approval. Yahoo and Microsoft are backing a year-old project called the "Open Content Alliance," which will offer copyright books, academic papers, and video and audio voluntarily submitted by publishers and authors.
Publishers have also launched their own efforts. In August, HarperCollins announced a “Browse Inside” program that publishes book excerpts online.
In an interview with the Mercury News last year, Brewster Kahle, the founder of the Internet Archive, said he was concerned how accessible a digital library run by Google would be.
“Is the library of the future going to be open?” Kahle said. “Or will it be controlled by a couple of big corporate players?”
For Google, whose stated aim is to organize the world’s information, being able to index the contents of the world’s libraries is its most ambitious project to date and a test to what extent it can push the boundaries separating freedom of information and copyright controls on published works.
With neither side ready to budge with subpoenas flying across the country, a settlement in the near future to the litigation looks unlikely, at least for now, though Google may ultimately prefer a settlement to a ruling that could go either way. By letting the case go all the way to judgment, Google is spinning the Big Money Wheel: a win could insulate it from similar claims by other content producers, while a loss could suddenly mean a very long line of people knocking at the door of the Accounting Department.