March 15, 2006

Google, Fair Use and Open Media: Fair Use for All, or Just Google?

Updated: I've corrected the information below that said Google was signing exclusive contracts with libraries. Apparently after I left the book search panel at SXSW, this notion was corrected in the room (I had to leave about 10 minutes before it ended). Google is *not* signing exclusive contracts with libraries for the scanning of books.

I just watched Larry Lessig's talk about Google and Book Search and Fair use, which he's put into video online.

There's been a ton of bruhaha over Google and its scanning of books. Authors' guilds are upset because they don't consider Google's book search to be fair use, even if 9% of books are in print, 16% are in the public domain, and the remaining 75% are out of print, but still under copyright protection. Lessig talked about this at the NY Public Library and Susan Crawford discussed it just after with the Author's Guild. The Author's Guild does not see this as fair use at all, though Lessig defends it on his blog:

Lessig also discusses it here in this video. Obviously, there is a lot of incorrect information and it's good to see lots of discussion in many places to help educate people on what fair use is, what technologies are being used and what copyright is about.

And I agree with Lessig, that showing a few sentences of books that have been scanned and made searchable, is good and helpful to society and our educational structure. But then he refers to the "googlization" of these books. Because there is an issue here where the fair use is not being passed along.

Google says that for books in the public domain (16%), it will grant full access. For books out of print but still in copyright (75%) it will grant snippet access, and the 9% in print will be given access based on what the publishers and authors allow and if no access is granted, then none is given. Fantastic!

But what about the rest of us? Do we have fair use rights over Google's fair use of public domain and out-of-print books? Or will they limit us technically from doing to them what they are doing to books in an analog way? They are copying those books, and asking us to back up this use of those copies. In other words, they have created a digital barrier to keep others away from fair use access to their fair use. Googlization indeed.

I think this is really a big problem. Google is saying that they want to prevail in the lawsuit, because even though they can afford to pay the author's guild, hardly anyone else can, and therefore, they must win to preserve everyone else's right to innovate. Well, that's true and a good argument. Except that they are one of the very few who can also afford to digitize books. And by putting books out digitally for search, they create a situation where everyone has to go to Google (or one or two others, inlcuding the Archive) for book search, because Google has paid for the scanning. For books that are not public domain, I can see limiting access, but for public domain books, there is a real problem with Google's communitarian sensibility.

I think if Google really cared about innovation and open markets, they would actually put the information out to be copied by others, and they would not ask our support unless they planned to play fair.

In the SXSW panel on Book Digitization and the Revenge of the Librarians, I brought up this issue, with the Google guy, Daniel Clancy , by asking about Google's activities around these issues. He and the other panelists engaged with the issue quite a bit, but I had to leave earlier than I wanted to so I missed the end of it. However, Daniel did say that Google is working on better search and community integration for the book scanning program and that in a few months, there would APIs or other tools to get closer to the material but they have to balance that with their costs of scanning. I'm skeptical of this. I think we really have to wait to see what they do, and of course the longer they make us wait, the less trusting I am of the promise to open the doors.

I loved Liz Lawley's suggestion that we all might take a book and scan it, instead of leaving the enormity of the scanning project to big companies and efforts like the Open Content Alliance. While I realize spending an hour scanning your favorite book may not be the most fun thing you can think of, making book search distributed is a very interesting idea. And could help create distributed multi-copy book search across the web. That's pretty cool.

Update: Note also Kevin Mark's rewriting of Cheever's words here.

Posted by Mary Hodder at March 15, 2006 07:14 PM | TrackBack

Liz's suggestion is not all that unrealistic. After all, that's how Project Gutenberg ( works, a 35 year-old (!) project with over 17,000 free books. Plus, building your own book scanner isn't out of the realm of possibility either, as this nifty article explains:

Posted by: Eugene Eric Kim at March 16, 2006 02:56 PM

In Google's defense (not a position I find myself in often these days ;), Daniel Clancy (their rep on the panel I chaired) said their contracts are *not* exclusive--other people can scan the same books.

Posted by: Liz Lawley at March 16, 2006 05:04 PM

thanks Liz.. since it was noted at the panel, I thought it was true.. but i've corrected that above.


Posted by: mary hodder at March 16, 2006 05:07 PM

Mary, Your post is very thoughtful. It's hard for me to take Google's morality seriously. They cache an entire copy of the Internet, yet their Terms of Service keeps us from scraping even one search page! Their answer to that is that we can tell them not to include our pages! That is such a power heavy attitude that I look forward to what might come after Google.

Posted by: Andrius Kulikauskas at March 24, 2006 09:40 AM