Google and Publishing

From The Big Picture Wiki

SPINNING ON THE AXIS OF... 'EVIL' ? —Jim Lichtenberg

A year and a half ago, the Authors Guild sued Google for copyright abuse. A month later the Association of American Publishers followed suit. And just last week Viacom filed suit against YouTube/Google for a cool one billion bucks for what it termed “massive intentional copyright infringement”. Viacom went on to say that YouTube has demonstrated “brazen disregard for the law...(by harnessing) technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed.” Or as the New York Times more gently put it, Viacom’s suit is “the most aggressive move so far by an old-line media company against the highly popular but legally questionable practice of posting copyrighted media content online.”

At their annual meeting last week, the AAP -- winning the 'strangest bedfellows of the week' award by suddenly cozying up to Microsoft -- gave the Redmond giant a soft-pitch forum in which to denounce the Google Empire for infringing copyright. Dramatically reading from prepared notes, Thomas Rubin, Microsoft’s associate general counsel, stated that Google’s practice of scanning first and asking questions later “systematically violates copyright and deprives authors and publishers of an important avenue for monetizing their works. In doing so, it undermines critical incentives to create.”

Already, back at a listserv that dare not speak its name, a thoughtful participant wondered: Since when is it okay to condone breaking the law (copyright), and letting the ends (broad digitization) justify the means (riding roughshod over the rights of content owners)? Needless to say, this whiff of purported “illegality” drew huffy responses from those who share Google’s worldview. It was a strange moment. After months of heady online dialogue about digital issues both germane and arcane among friendly publishing cognoscenti, suddenly there were biting exchanges -- white hats vs. black hats, thugs vs. good citizen, those who condoned vs. those who opposed purported “evil-doings.”

Although this hue and cry is part of publishing’s day-to-day consciousness, we can’t forget that we are still in the very early days of the digital millennium. There is no question that protecting that “critical incentive to create” is exactly why the framers of the Constitution embedded the copyright provisions in the First Amendment. However, recent court decisions, contract provisions, and business practices are panting, close to heart attack, desperately trying to catch up to the explosive impact of technologies that were, of course, totally unknown to the inspired law makers in Philadelphia in the 18th century.

Legal uncertainties are definitely part of the problem. On the one hand, the courts have exonerated web-hosting companies, and even Napster, claiming that they are not responsible for violations of copyright that might occur via their services, and that it is up to those who were “injured” to take action. This follows the “common carrier” protections: if someone threatens your life via cell phone, it’s not Verizon’s fault. On the other hand, making and keeping an entire copy of a copyrighted work, albeit in digital form, and then using it to make money via advertising revenues -- without first getting permission of the copyright holder -- would seem to violate both the letter and the spirit of the intent of our founding fathers.

Defenders of Google, such as Edward Black, president of the Computer and Communications Industry Association, point to “fair use” as being the issue here, and that at least Microsoft’s anti-Google pronouncements have gone too far. Unfortunately, “fair use” is a quagmire along the lines of war in the Mideast. Nevertheless, two of the infamous four factors for determining if something is not fair use, i.e. “making a complete copy” and “causing financial harm”, would seem to support the cause of those who point to Google’s “brazen disregard for the law”.

Then there’s the gut check. Is it okay to borrow someone’s John Deere tractor mower without asking first, even if you are going to mow their lawn and everyone else’s in the neighborhood?

Certainly the several major libraries, such as Michigan and Harvard, are fine with that approach, agreeing to let Google scan all their holdings, despite the fact that what they are getting in return at this point, are only some pretty funky PDF files, with strings attached …while Google, on the other hand, gets a huge transfer of value just for the cost of scanning. (Imagine the present cost of buying all those books – hello, IRS?)

Although Google did set themselves up by initially claiming to be a sort of messiah that would save the world’s content from obscurity, there’s no good or evil issue at stake here. (One might, however, ask if it’s worth saving all of the world’s content? I mean, isn’t there is a reason you don’t keep up with some of your friends from high school, just as there is a reason some works fall into obscurity?)

But, it’s not a moral issue. Rather, as they say in Texas, it’s “bidness.” In this light, whether precisely true or not, Jeffrey Toobin’s article in the New Yorker, “Google’s Moon Shot” is in the right ballpark. Toobin alleges that Google is knowingly violating copyright in order to provoke a giant settlement that will effectively ice out smaller players and assure them dominance in search and the delivery of digital content.

Whatever the outcome, unquestionably, digital search is magnificent. And Google is an amazing business. As I write, the head of Google in Spain and Portugal has confirmed that Google is working on a mobile phone. (Apple should be worried as well, it would seem.) As a result of their pioneering efforts, the eventual upside for content owners - once these squabbles are resolved - is enormous. In a sense, content owners and Google are like two kids at bedtime, smiling at their parents while simultaneously kicking each other under the covers. To be sure, paraphrasing Jerry Lee Lewis, there is “a whole lot of suing going on.” But that other Jerry, Jerry McGuire, is more to the point: “Show me the money.”