Between the stacks - Google book engine needs ingenuity

Between the stacks - Google book engine needs ingenuity

Murray Op-Ed in The D.C. Examiner
November 07, 2005

What bookworm doesn't love the idea of Google's new project, Google Library? The ability to search the entire contents of the world's greatest libraries online seems to fulfill one of the greatest potentials of the Internet. Unfortunately, Google has glossed over some inconvenient details. Unless Google is willing to step back and think for a moment, the whole project threatens to come off the rails.

Google Library involves scanning all of the works in five major libraries around the world - the New York Public Library and university collections from Oxford, Harvard, Michigan, and Stanford - to make them easily searchable. Out-of-print books would be accessible online via the project, while books still under copyright would show only small excerpts. Google would make its money from the targeted advertisements that it would show searchers.

The snag is that Google's proposed treatment of copyright has run into some serious legal hurdles. Google wants copyright holders who might object to Google using their works to "opt out" of the project. An alliance of copyright holders, publishers and authors has objected that Google's plans usurp their copyright, which gives copyright owners the exclusive right to authorize others to use their works. Google replies that its project amounts to a "fair use" - a famously nebulous concept. The authors have sued, and it is likely now that a court will decide the issue.

It is hard to see how Google can win. "Fair use" takes into account commercial considerations and the very fact that Google hopes to make money out of its copying the works suggests that this is not "fair use" but commercial exploitation of another's property. So one has to wonder what Google is playing at. Google's main competitors, Yahoo and Microsoft, have both proposed their own schemes where copyright owners opt in.

If Google Library's business model suggests that copyright owners opting in, rather than out, of the project will still allow it to be profitable, then Google has been, at best, cavalier in its approach. If it cannot make money from an opt-in, then the project's business model is fatally flawed. If there is a gray area, then Google should be working hard with the copyright owners to find a solution.

Here is one suggestion for a way forward. Property rights are essential to the way our economy has developed. Cultures that have paid less attention to property rights than has the Anglo-American system have either foundered or stagnated. Yet at the same time, property rights, whether tangible or intellectual, can block innovation. Every so often there comes a point when we have to rethink the system to allow innovation to proceed but at the same time guard much-needed rights.

For example, when the British invented railroads in the 1820s, the innovators of the day, the railroad developers, were faced with a problem. To build railways between towns, they needed fairly straight routes that would not constantly bend round property boundaries. Negotiations with individual property owners to purchase slices of land were feasible, but one or two refusals could block the whole project.

The railroad companies and their financial backers therefore developed a new system. They each took proposals to Parliament, promoting private bills managed by parliamentary agents - not legislators - to persuade Parliament to grant eminent domain powers. Anyone affected by the proposed route could petition, and Parliament could require changes to be made to the proposals. Legislators served only as a final arbiter between parties. Parliament thereby encouraged innovation while at the same time ensuring a fair hearing and adequate compensation for property owners.

Google's project is not as linear as a railroad and would not be "derailed" even if a lot of copyright holders refused to opt into the scheme. What I am suggesting is that this is the sort of innovative thinking that needs to be applied to copyright law so that both content providers and technology developers can benefit in the future.

The benefits of Google's project are potentially massive - it could represent the resurrection of out-of-print or otherwise unavailable works, works from which copyright holders can benefit once again.

Google's project deserves to succeed. Authors deserve to profit from their work and have their current legal rights respected. Both Google and the authors make their living from creativity. Creative thought now could benefit both parties.