Google's Tough Call

A decision will be made this November that may well change the Internet as we know it. Not in a technical sense - the threats there are many and are yet to be resolved. I'm talking about change in a business sense - meaning what business models will work on the Internet.
Google must decide how it will handle the battle over its latest great idea: Google Print. Last December­ the com­pany announced it would Googlize 15 million books. For works under copyright, a search would produce snippets around the search term used. But for books in the public domain, a search would also yield access to the full text of the works. Almost 90 percent of the books Google might scan are out of print. The project promises to ­radi­cally enhance our access to the past - to remind us of forgotten information. It is the great­est gift to knowledge since, well, Google.

But not everyone loves Google, or at least not this idea. In September, the Authors Guild filed suit against Google's "massive copyright infringement." And the Association of American Publishers has piled on with what it calls "grave misgivings" that Google may be infringing copyright. In response to these concerns, Google offered to delay the project until now and to exclude from scanning and indexing any book the pub­lishers identify. The AAP was insulted; its CEO, Pat Schroeder, announced, "Google's procedure shifts the responsibility for preventing infringement to the copyright owner rather than the user, turning every principle of copyright law on its ear."

Schroeder is right, but the Authors Guild and the AAP are wrong. Copyright law has been turned on its ear, but it's not Google that did the turning; it's the ­Internet. Nor is it Google that is exploiting this turn; that title goes to the Authors Guild and the AAP.

Indeed, their claims about Google represent the biggest landgrab in the history of the Internet, and if taken seriously, will chill a wide range of innovation. Because if the AAP is right, it's not Google Print that's illegal. The outlaw is Google itself - and Yahoo!, and MSN Search, and the Internet Archive, and every other technology that makes knowledge useful in a digital age.

Think about Google's core business: It copies whatever content it finds on the Web and puts that content in an index. It doesn't ask the copyright owner first, though it does exclude content if asked. Thus, Google wants to do for books exactly what it has always done for the Web. Why should one be illegal and the other different?

Google creates value - a lot of it - by indexing existing content. But when it comes to books, the content owners want a slice of that value - and who wouldn't? No publisher ever said, "I'll lose money on book sales, but I'll make it up from Internet searches." They therefore intone "grave misgivings" about copyright in order­ to demand a piece of the action­: money. It's an old technique (the Motion Picture Association of America famously tried it against Sony Betamax). But the inspiration is not copyright, it's Tony Soprano­.

Google wants to index content. Never in the history of copyright law would anyone have thought that you needed permission from a publisher to index a book's content. Imagine if a library needed consent to create­ a card catalog. But Google indexes by "copying." And since 1909, US copyright law has given copyright holders the exclusive right to control copies of their works. "Bingo!" say the content owners.

But the Congress that altered the copyright­ statutes in 1909 didn't have Google Print in mind. By copy, Congress meant the sort of act that would be in competition with the incentives that copyright law was (fittingly) meant to establish for authors. Nothing in what Google wants to do affects those incentives to creativity.

It is for this reason that many appropriately believe that Google's indexing of these copyrighted works is plainly fair use - meaning exempted from the control of copyright. But to reach that conclusion with confidence would require expensive litigation with an uncertain outcome.

Thus the decision that will impact the Internet. A rich and rational (and publicly traded) company may be tempted to compromise - to pay for the "right" that it and others should get for free, just to avoid the insane cost of defending that right. Such a company is driven to do what's best for its shareholders. But if Google gives in, the loss to the Internet will be far more than the amount it will pay publishers. It will be a bad compromise for everyone working to make the Internet more useful - and for everyone who will ultimately use it.