The Washington Post has an interesting pair of articles on the Google lawsuit. One is written by the University of Michigan head librarian, defending Google. The second is by the president of the Authors Guild. Since they’re the ones doing the suing, you know where they stand.
Now neither of these articles is particularly long on substance, but I did want to clear up one bit of misinformation in Nick Taylor’s article:
Google contends that the portions of books it will make available to searchers amount to “fair use,” the provision under copyright that allows limited use of protected works without seeking permission. That makes a private company, which is profiting from the access it provides, the arbiter of a legal concept it has no right to interpret. And they’re scanning the entire books, with who knows what result in the future.
Taylor seems to be claiming that Google is taking the law into its own hands, deciding for the rest of us what “fair use” is. If you believe Taylor, by scanning books Google is usurping the role of the U.S. government itself.
I think what Taylor has done here is far more than a rhetorical sleight of hand — it’s hypocritical as well. Google has done anything but usurp the role of government, because copyright law doesn’t give government the role of determining whether a specific use of copyrighted material falls under the fair use guidelines. The only way for that to be achieved is by filing a lawsuit. This is one of the ways copyright law was crafted by the big guys in order to crush the little guy. If an average Joe publishes an excerpt critical of a big company on his Web site, the big company can slap Joe with a lawsuit, and unless Joe can afford to hire an army of lawyers to defend himself, he has no recourse but to remove the material. That’s the way the corporate hacks who wrote the copyright laws want it (if you don’t believe this, please read Jessica Littman’s book Digital Copyright and then get back to me).
So far from usurping the role of government, Google is doing the only thing the little guy can do to challenge corporate-sponsored copyright law. The scary thing is, the law may still be on the Authors Guild’s side (and now the Association of American Publishers). No one said the publishing companies don’t have good lawyers. But as I’ve said before, I think Google’s got a better chance of winning this lawsuit than changing copyright law to allow their new version of fair use.
So here’s the prospect we’re faced with: if you don’t want easier access to published information, if you don’t want to be able to locate critical bits of knowledge — even in the 60 percent of all books that are still copyrighted but now out of print — then you should side with the authors.
But the authors themselves should also realize something. Starting up lawsuits such as this one, which stifle the ability to find their works in an increasingly electronic age, will only hasten the demise of that thing they so cherish — the printed book itself.
Update: There’s a rather lively debate on this post going on over at MacRumors. Feel free to chime in there, or add a comment here with your thoughts.
Update 3: Drum pointed out to me that Google isn’t exactly the “little guy” in all this. And in some ways, with the li’l ol’ Authors Guild suing them, it does seem that way. But technology companies have typically been the ones left out of the loop in copyright law — Google didn’t even exist when the most recent laws were passed. Still, with its stock passing through the stratosphere, and with its hands seemingly on every aspect of contemporary life, should we really let Google get away with this usurpation of individual freedoms? Vershbow, too, seems be worried about balance. We can’t let Google become the next Microsoft, can we?
Certainly that’s a concern in the long run, but right now, I don’t see it. What Google’s doing with its search engine and other tools is nothing like a monopoly — it’s not a Big Guy like Microsoft is — its products, for now, are simply better than the other ones out there. There’s nothing about what Google’s doing that can’t be duplicated by someone else — it’s not like an operating system, where you need to worry about whether your computers will be compatible. If Google’s search engine starts underperforming, I can just head over to Yahoo or MSN (as I often do when searching for individual blog posts). But if I have thousands invested in Windows software (or Apple software, as the case may be), the decision to switch to the competitor becomes a much more expensive proposition. So yes, in some senses, Google is becoming a big guy — but for the time being, let’s spell it with a lowercase “b.”