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June 17, 2005

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I just found a PDF file on the web that was created by U of M's John Wilkin on December 13, 2004. In this file he proudly shows a screen shot of how Google will show snippets for copyrighted works. There are Google ads on the screen! Doesn't this violate Section 108? See my screen shot of his screen shot: http://www.google-watch.org/busted.html

from Joe Gratz's blog

This is the contract governing the digitization project in which Google is scanning large chunks of the University of Michigan Libraries’ collections. Interesting tidbits include the fact that Google is taking on all liability for copyright infringement arising from the scanning itself and from the public dissemination of Google’s copies, while the University takes on liability for infringement actions arising from its use of its own digital copy. (They seem to really, truly believe that they are privileged to scan copyrighted books, at least to make private copies for Google and the University. This is going to be interesting.) Also, Michigan agrees to attempt to keep anyone from sucking down books in bulk using scripts. All very sensible terms. The agreement was originally confidential, but release was required under Michigan’s Freedom of Information Act.

http://www.joegratz.net/ 17 June 2005

This is a fascinating document, although, as a non-lawyer I found myself confused in parts. Mary, can you restate parts 10.1 and 10.2 in "real language"? And how about the last sentence in 9.2, which seems to have more negatives than the Enron ledger? Thanks!

Other than that, a key aspect of this document is that although it admits that display or delivery of the full text (or images of the full text) could be infringing, it makes clear that it does not consider the copying made for the purposes of indexing nor the indexing of the full text to be infringing. At least, this is how I interpret section 4.5.1, where it states that if the display of "full-sized digital images" is proven to be infringing in some case, that they will remove the digital images -- but it doesn't say that they'll remove the keywords from the index.

I've had a chance to think about this situation some more.

I predict that the University of Michigan's current intention of providing their entire seven-million-book collection to Google will not stand. This will be true even though the logistics of the digitizing process are locked in until 2009, and the terms and conditions of use of the digital files are perpetual, according to the language in the contract.

In the first place, Google does not have the right to challenge the University, if the library simply says that certain types of material are unavailable for digitization. The University has an "easy out" in this respect. It's almost the only item in the contract language that wasn't conceded to Google by the University.

The University of Michigan is wide open to a restraining order over copyright issues. UM is the only one of the five libraries to openly brag that they expect their entire collection will be digitized by Google. Stanford has implied as much, but is also intends to work with Google incrementally, and wait to see what happens further down the road. This is the impression I get from reading the public statements of University and library officials at UM and Stanford. The other three libraries, Harvard, the New York Public Library, and Oxford, are not willing to hand over copyrighted material to Google.

There are copyright issues that Google must deal with once they own the digital files. These involve the definition of "fair use." But right now, this aspect of copyright law is not the potential show-stopper. The immediate question is, does the University of Michigan have the right to turn over copyrighted material to Google for the express purpose of digitization by Google? That's the show-stopper.

Look at it this way: You walk into the library down the street with a big bag full of quarters. You take a book down from the shelf, one which is copyrighted and cannot be checked out, and you start copying from page one. Many librarians would be nervous about allowing you to do this under current copyright law, even if they choose not to stop you.

This is exactly what Google is doing, except that they have seven million bags of quarters, and the University is telling Google, "Wonderful, here's the next cart of books for you! Can we be of further assistance?" It's not going to fly in the long run. The Association of American University Presses will probably not file suit, because their member organizations are from campuses, where anti-copyright librarians hang out. No one likes internal wars. But Google has also sparked the interest of major for-profit publishers. It would not take much to make the University of Michigan sufficiently nervous over liability issues, so that they decide to withhold all copyrighted material from Google until this matter is resolved.

But I dwell on copyright issues only because it's the weakest link for the University of Michigan. Other issues are very important, even if they don't have a similar level of legal support. Even if Google can't get any copyrighted material from libraries, they can still get the public domain material. There's a lot of public domain material that Google would love to acquire. That's the point at which these other issues will become more interesting.

First, we have the cultural issue and the censorship issue. If Google has a near-monopoly on digitized books, which books will they choose to make available through web search services? Mostly English or lots of languages? Is Karl Marx okay? What about a book on explosives? How about that glowing biography of Osama bin Laden that's in the public domain? I defer to Europe on this issue, because they're more aware of the implications than I am.

Second, we have the monetization issue. Google will not impose a "direct charge" for access to their digital books, but we all know that there are dozens of ways to monetize their asset indirectly. Some of these are intrusive, and an insult to our cultural heritage and our self-respect. Will Google care, as long as they are making money and their stockholders are happy?

And what about the language in the contract that says the University of Michigan can only use their copies of the files on their own website, and only if they lock out bots and third party redistribution, and only if they have limited traffic? Even if UM wants to show clean, ad-free copies of public domain material, they will be unable to offer an alternative to Google's monetization of those same copies. This is one huge concession that UM made, and it should be a source of embarrassment for them.

Third, there is the privacy issue. This is the issue that interests librarians. You'll be hearing more about this, I hope. However, there's almost no "legal juice" behind the privacy issue, even though it's an issue that, unlike the other issues, will cause many librarians to have second thoughts about Google's project. Even the House of Representatives voted this past week to curb the FBI and Justice Department from the access to library and bookstore records that was granted under the USA Patriot Act.

There are a lot of people who "get it" when privacy issues are connected to intellectual freedom, and librarians are in the lead on this. Right now most of them think a cookie is something you eat, not something that Google plants on your browser. I hope that will change.

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