[A2k] Toobin on Google strategy

[Manon Ress]

--
[ Picked text/plain from multipart/alternative ]
Interesting story in the New Yorker regarding Google "strategy" of
scan, get sued,  and settle....

Quote:
Google=92s advantage may well be cemented if the company settles its
lawsuits with the publishers and authors. =93If Google says to the
publishers, =91We=92ll pay,=92 that means that everyone else who wants to
get into this business will have to say, =91We=92ll pay,=92 =94 Lessig said=
.
=93The publishers will get more than the law entitles them to, because
Google needs to get this case behind it. And the settlement will
create a huge barrier for any new entrants in this field.=94
End of quote

http://www.newyorker.com/printables/fact/070205fa_fact_toobin

GOOGLE=92S MOON SHOT
by JEFFREY TOOBIN
The quest for the universal library.
Issue of 2007-02-05
Posted 2007-01-29

Every weekday, a truck pulls up to the Cecil H. Green Library, on the
campus of Stanford University, and collects at least a thousand
books, which are taken to an undisclosed location and scanned, page
by page, into an enormous database being created by Google. The
company is also retrieving books from libraries at several other
leading universities, including Harvard and Oxford, as well as the
New York Public Library. At the University of Michigan, Google=92s
original partner in Google Book Search, tens of thousands of books
are processed each week on the company=92s custom-made scanning equipment.

Google intends to scan every book ever published, and to make the
full texts searchable, in the same way that Web sites can be searched
on the company=92s engine at google.com. At the books site, which is up
and running in a beta (or testing) version, at books.google.com, you
can enter a word or phrase=97say, Ahab and whale=97and the search returns
a list of works in which the terms appear, in this case nearly eight
hundred titles, including numerous editions of Herman Melville=92s
novel. Clicking on =93Moby-Dick, or The Whale=94 calls up Chapter 28, in
which Ahab is introduced. You can scroll through the chapter, search
for other terms that appear in the book, and compare it with other
editions. Google won=92t say how many books are in its database, but
the site=92s value as a research tool is apparent; on it you can find a
history of Urdu newspapers, an 1892 edition of Jane Austen=92s letters,
several guides to writing haiku, and a Harvard alumni directory from
1919.

No one really knows how many books there are. The most volumes listed
in any catalogue is thirty-two million, the number in WorldCat, a
database of titles from more than twenty-five thousand libraries
around the world. Google aims to scan at least that many. =93We think
that we can do it all inside of ten years,=94 Marissa Mayer, a vice-
president at Google who is in charge of the books project, said
recently, at the company=92s headquarters, in Mountain View,
California. =93It=92s mind-boggling to me, how close it is. I think of
Google Books as our moon shot.=94

Google=92s is not the only book-scanning venture. Amazon has digitized
hundreds of thousands of the books it sells, and allows users to
search the texts; Carnegie Mellon is hosting a project called the
Universal Library, which so far has scanned nearly a million and a
half books; the Open Content Alliance, a consortium that includes
Microsoft, Yahoo, and several major libraries, is also scanning
thousands of books; and there are many smaller projects in various
stages of development. Still, only Google has embarked on a project
of a scale commensurate with its corporate philosophy: =93to organize
the world=92s information and make it universally accessible and useful.=94

In part because of that ambition, Google=92s endeavor is encountering
opposition. A federal court in New York is considering two challenges
to the project, one brought by several writers and the Authors Guild,
the other by a group of publishers, who are also, curiously, partners
in Google Book Search. Both sets of plaintiffs claim that the library
component of the project violates copyright law. Like most federal
lawsuits, these cases appear likely to be settled before they go to
trial, and the terms of any such deal will shape the future of
digital books. Google, in an effort to put the lawsuits behind it,
may agree to pay the plaintiffs more than a court would require; but,
by doing so, the company would discourage potential competitors. To
put it another way, being taken to court and charged with copyright
infringement on a large scale might be the best thing that ever
happens to Google=92s foray into the printed word.

Though Google has more than ten thousand employees=97about fifty new
ones are hired each week=97and a market capitalization of more than a
hundred and fifty billion dollars, the company cultivates the air of
a college campus at its headquarters, in Silicon Valley. Now and
then, there are self-consciously wacky stunts, like Pajama Day, which
happened to take place when I visited. (The event was to be madcap
within reason; supervisors were told to convey the message that
=93pajamas means =91pajamas,=92 not =91what you sleep in.=92 =94) When I me=
t with
Sergey Brin, a co-founder of Google, he was wearing bright-blue
p.j.s, with the company=92s logo stitched on the breast pocket.

The story of how Brin and Google=92s other co-founder, Larry Page, met
as graduate students in computer science at Stanford in the mid-
nineties, and devised a series of elegant software algorithms that
allowed Web searchers to find relevant information quickly and
efficiently, has become part of Silicon Valley lore. Less well known
is that, at the time, Brin and Page were also working on Stanford=92s
Digital Library Technologies Project, an attempt, funded by the
federal government, to organize different kinds of stored
information, including books, articles, and journals, in digital
form. =93There was an attitude in computer science that putting things
on dead trees was obsolete and getting it all into a searchable,
digital format was a quest that had to be accomplished someday,=94
Terry Winograd, a Stanford professor who was a mentor to Page and
Brin, said.

After founding Google, in 1998, Page and Brin=97who are now in their
mid-thirties and worth around fourteen billion dollars each=97began to
talk about how to include books in the company=92s database. Page, in
particular, embraced the idea of putting books online; at one point,
he set up a primitive lab in his office, with a scanner and a page-
turning machine. =93I think it was motivating to have those kinds of
aspirations, but nobody really took it seriously,=94 Brin told me. The
men were less interested in making it easy for people to obtain the
full texts of books online than in making accessible the information
those books contained. =93We really care about the comprehensiveness of
a search,=94 Brin said. =93And comprehensiveness isn=92t just about, you
know, total number of words or bytes, or whatnot. But it=92s about
having the really high-quality information. You have thousands of
years of human knowledge, and probably the highest-quality knowledge
is captured in books. So not having that=97it=92s just too big an
omission.=94 As Marissa Mayer put it, =93Google has become known for
providing access to all of the world=92s knowledge, and if we provide
access to books we are going to get much higher-quality and much more
reliable information. We are moving up the food chain.=94

In 2002, Google quietly made overtures to several libraries at major
universities. The company proposed to digitize the entire collection
free of charge, and give the library an electronic copy of each of
its books. =93Larry is an undergrad alum here at Michigan, and he knew
we were already interested in digitizing the library as part of our
preservation efforts,=94 John Wilkin, an associate university librarian
at Michigan, told me. =93There was a lot of back-and-forth between
Google and us in the process. We wanted to insure that the materials
wouldn=92t be damaged and that what came out could be used as a
preservation surrogate. They started experimenting with different
ways of copying the images, and we started a pilot project in July,
2004. We=92ve been getting better, going faster. We=92re doubling our
output all the time.=94 The Michigan library holds seven million
volumes, and Wilkin believes that Google will have copied the entire
collection in about six years.

Last month, at the New York Public Library, Google hosted a
conference on the future of the publishing industry. About four
hundred people=97mainly publishing executives and agents=97attended, most
of them grimly aware of the simultaneous lethargy and panic that have
characterized their industry=92s response to the digital age. Nearly
all attempts to sell books in an electronic format have been
disappointing, and now Google appeared to be encroaching on the
publishers=92 domain. The implicit message of the conference was summed
up by a quotation from Charles Darwin that was projected on a screen:
=93It is not the strongest of the species that survive, nor the most
intelligent, but the ones most responsive to change.=94 As Laurence
Kirschbaum, a longtime publishing executive who recently became a
literary agent, told me at the conference, =93Google is now the
gatekeeper. They are reaching an audience that we as publishers and
authors are not reaching. It makes perfect sense to use the
specificity of a search engine as a tool for selling books.=94

Google thought so, too, and designed the books project accordingly.
In addition to forming partnerships with libraries, the company has
signed contracts with nearly every major American publisher. When one
of these publishers=92 books is called up in response to search
queries, Google displays a portion of the total work and shows links
to the publisher=92s Web site and online shops like Amazon, where users
can buy the book. =93We are helping the publishers reach consumers that
otherwise might not have known about their books and helping them
market their books by giving limited but relevant previews of the
books,=94 Jim Gerber, Google=92s director of content partnerships, told
me. =93The Internet and search are custom made for marketing books.
When there are a hundred and seventy-five thousand new books each
year, you can=92t market each one of those books in mass market. When
someone goes into a search engine to learn more about a topic, that
is a perfect time to make them aware that a given book exists.
Publishers know that =91browse leads to buy.=92 =94 (Google says that it
does not take a cut of sales made through its books site.)

Still, on October 19, 2005, several leading publishers, including
Simon & Schuster, the Penguin Group, and McGraw Hill=97all of which are
partners in Google Book Search=97filed a lawsuit against the company,
seeking to stop the project. The publishers don=92t object to Google=92s
plan for helping them sell new books, but they assert that the
library component of the project is illegal. They claim that Google=92s
=93massive, wholesale and systematic copying of entire books still
protected by copyright=94 infringes on the publishers=92 rights. They
demand that Google stop further copying and =93destroy all unauthorized
copies made by Google through the Google Library Project of any
copyrighted works.=94 (The Authors Guild filed its lawsuit around the
same time.) The publishers, who have the support of the Association
of American Publishers, are suffering from a version of the problem
that John Kerry had in the last Presidential campaign: they are for
Google Book Search at the same time that they are against it.

Copyright law dates to the birth of the Republic. Article I of the
Constitution assigns Congress the right to pass laws =93securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.=94 The first copyright law was
passed in 1790, and it has been frequently and confusingly amended
over the years, most recently in the Sonny Bono Copyright Term
Extension Act of 1998, which extended copyright terms by twenty
years. (The law is also known as the Mickey Mouse Protection Act,
because the Walt Disney Company, seeking to protect its copyright on
early animated classics like =93Steamboat Willie,=94 lobbied heavily for
it.) The twisted history of copyright law has insured an awkward
passage into the digital age.

The legal assertion at the core of Google=92s business plan is its
purported right to scan millions of copyrighted books without payment
to or permission from the copyright owners. Approximately twenty per
cent of all books are in the public domain; these include books that
were never copyrighted, like government publications, and works whose
copyrights have expired, like =93Moby-Dick.=94 Google has simply copied
such books and made them available on the Web. Roughly ten per cent
of books are copyrighted and in print=97that is, actively being sold by
publishers. Many of these books are covered by Google=92s arrangement
with its publisher partners, which allows the company to scan and
display parts of the works.

The vast majority of books belong to a third category: still
protected by copyright, or of uncertain status, and out of print.
These books are at the center of the conflict between Google and the
publishers. Google is scanning these books in full but making only
=93snippets=94 (the company=92s term) available on the Web. (Google
searches turn up only the search term and about twenty words on
either side of it.) Copyright law has never forbidden all =93copying=94
of a protected work; scholars and journalists have long been allowed
to quote portions of copyrighted material under the doctrine of fair
use. Google maintains that the chunks of copyrighted material that it
makes available on its books site are legal under fair use. =93We
really analogized book search to Web search, and we rely on fair use
every day on Web search,=94 David C. Drummond, a senior vice-president
at Google who is overseeing the response to the lawsuits, told me.
=93Web sites that we crawl are copyrighted. People expect their Web
sites to be found, and Google searches find them. So, by scanning
books, we give books the chance to be found, too.=94 (Google also has
an =93opt out=94 policy, which allows copyright holders to request that
specific titles be omitted from the company=92s database.)

However, according to the plaintiffs in the cases against Google, the
act of copying the complete text amounts to an infringement, even if
only portions are made available to users. =93What they are doing, of
course, is scanning literally millions of copyrighted books without
permission,=94 Paul Aiken, the executive director of the Authors Guild,
said. =93Google is doing something that is likely to be very profitable
for them, and they should pay for it. It=92s not enough to say that it
will help the sales of some books. If you make a movie of a book,
that may spur sales, but that doesn=92t mean you don=92t license the
books. Google should pay. We should be finding ways to increase the
value of the stuff on the Internet, but Google is saying the value of
the right to put books up there is zero.=94

Google asserts that its use of the copyrighted books is
=93transformative,=94 that its database turns a book into essentially a
new product. =93A key part of the line between what=92s fair use and
what=92s not is transformation,=94 Drummond said. =93Yes, we=92re making a
copy when we digitize. But surely the ability to find something
because a term appears in a book is not the same thing as reading the
book. That=92s why Google Books is a different product from the book
itself.=94 In other words, Google says that being able to search books
on its site=97which it describes as the equivalent of a giant library
card catalogue=97is not the same as making the books themselves
available. But the publishers cite another factor in fair-use
analysis: the amount of the copyrighted work that is used in the
creation of the new one. Google is copying entire books, which
doesn=92t sound =93fair=94 to the plaintiff publishers and authors.
=93Traditional copyright analysis says that a transformation leads to
the creation of a new and independent work, like a parody or a work
of criticism,=94 Jane Ginsburg, a professor at Columbia Law School,
said. =93Copying the entire work, which is what Google is doing, does
not preclude a finding of fair use, but it does fall outside the
traditional paradigm.=94

Harvard, Stanford, and Oxford have prohibited Google from scanning
copyrighted works in their collections, limiting the company to books
that are in the public domain. Because of the opacity of copyright
law, and the extension of protections mandated by the 1998 act, it=92s
not always clear which works are still protected. (Copyright status
can become murky when authors die or publishing houses go out of
business.) Stanford has drawn a line at 1964 and prohibited Google
from copying most works published since that date. =93When Google got
sued, we got nervous,=94 Michael A. Keller, the university librarian at
Stanford, told me. =93We=92re not a public institution. We don=92t have any
state immunity from being sued ourselves, so we started sorting out
the stuff that we know is public domain.=94 (Several of the public
institutions that are Google=92s partners, including the Universities
of Michigan, California, Virginia, and Texas at Austin, are allowing
the scanning of copyrighted material.)

The chief engineer of Google=92s system for scanning books in the
library collections is Dan Clancy, who joined the company after eight
years at NASA, where he supervised teams of Ph.D.s. working on
problems related to artificial intelligence. Google provides its
employees with free food twenty-four hours a day, and Clancy, a tall,
shambling man with a shock of white-blond hair, conducted most of our
conversations with bits of granola bar clinging to his shirt.

=93Previously, when people have done scanning, they always were
constrained by their budget and their scale,=94 Clancy told me. =93They
had to spend all this time figuring out which were the perfect ten
thousand books, so they spent as much time in selection as in
scanning. All the technology out there developed solutions for what
I=92ll call low-rate scanning. There was no need for a company to build
a machine that could scan thirty million books. Doing this project
just using commercial, off-the-shelf technology was not feasible. So
we had to build it ourselves.=94

Google will not discuss its proprietary scanning technology, but,
rather than investing in page-turning equipment, the company employs
people to operate the machines, I was told by someone familiar with
the process. =93Automatic page-turners are optimized for a normal book,
but there is no such thing as a normal book,=94 Clancy said. =93There is
a great deal of variability over books in a library, in terms of size
or dust or brittle pages.=94 (To needle Google, several blogs have
posted images from the books site that include the scanners=92
fingers.) Google will not reveal how much it is spending on the books
project. In 2005, Microsoft announced that it would spend two and a
half million dollars to scan a hundred thousand out-of-copyright
books in the collection of the British Library. At this rate,
scanning thirty-two million books=97the number in WorldCat=92s database=97
would cost Google eight hundred million dollars, a major but hardly
extravagant expenditure for a multibillion-dollar corporation.

Copying all those pages presents many difficulties, but writing
software to make the books useful to searchers is even harder. =93The
scanning technology is boring,=94 Clancy said. =93The real challenge is
to get somebody something that they are actually interested in,
inside a book. Web sites are part of a network, and that=92s a
significant part of how we rank sites in our search=97how much other
sites refer to the others.=94 But, he added, =93Books are not part of a
network. There is a huge research challenge, to understand the
relationship between books.=94

Still, the basic search protocols function well. A search for =93Heart
of Darkness=94 leads immediately to Joseph Conrad=92s novel, which is not
as obvious as it sounds, considering how common the words in the
title are. As Clancy said, =93If you put in =91Heart of Darkness,=92 we
have to know that you=92re looking for the novel, not a book about
lighting conditions in cardiac surgery. So how do we do that? We rank
some words more important than others. The title may matter more than
the content, so we may weight that more. You could also look at what
other people have searched for, so if everyone who searched for
=91Heart of Darkness=92 clicked on the novel, we might figure that you
probably will, too.=94

The most important data for ranking searches, Clancy explained, may
come from Web pages that link to books in Google=92s database. (For
instance, if links on the phrase =93Clinton=92s autobiography=94 direct
users to a copy of =93My Life=94 on the books site, there is a high
probability that people who use the same search terms will also want
this result.) =93We just started, and we need to make these books
networked, and we need people to help us do that,=94 Clancy said.

Google=92s database contains many books in languages other than
English, but for now they must be searched in the original tongue. On
the company=92s Web site, there is already a primitive translation
feature, and it may someday be enhanced to allow books to be rendered
in another language at the touch of a button. =93In terms of
democratization, you want to be able to access information,=94 Clancy
told me. In places like the Arab world, where few titles are
translated into the local languages each year, he said, access to the
world=92s books could have a substantial impact. =93We are talking about
a universal digital library,=94 Clancy went on. =93I hope this world
evolves so that there exists a time where somebody sitting at a
terminal can access all the world=92s information.=94

Such messianism cannot obscure the central truth about Google Book
Search: it is a business. Google has pledged not to show advertising
next to the pages of library books, but the company does sell
advertising alongside search results that lead to books obtained from
publishers. Google=92s prospects for producing revenue from the books
project appear rather modest, but the company has often made a profit
on ventures that initially seemed unlikely to be lucrative. =93We=92ve
had this fortunate streak that when we=92ve done things that have
impacted our users and society as a whole=97positively, in a
significant way=97we=92ve been rewarded by that downstream in some way,
even though we may not have envisioned exactly what it was right
offhand,=94 Sergey Brin told me. =93We didn=92t have ads when we first put
up Web search. It wasn=92t clear it was great business when we started
search. In fact, the companies that were doing search were moving
away from it. But we just thought it was important, and we thought
that where there was a will there would be a way. And in fact it
turned out to be a great way to make money=97doing search with targeted
advertising. And I think you=92ll find the same sort of thing here.=94

The key legal question is whether the courts will allow Google to
continue to scan copyrighted material without permission. But the
schedule of the lawsuits may turn out to be as significant as the
merits of the cases, which are before Judge John E. Sprizzo. In
keeping with the stately pace of federal litigation, the depositions
of witnesses are to begin sometime this year, and the parties will be
allowed to file motions for summary judgment=97in Google=92s case, to
dismiss the suits=97in early 2008. Then there could be a trial. If the
cases are appealed, they could linger well into the next decade.

However, most people involved in the dispute believe that a
settlement is likely. =93The suits that have been filed are a business
negotiation that happens to be going on in the courts,=94 Marissa Mayer
told me. =93We think of it as a business negotiation that has a large
legal-system component to it.=94 According to Pat Schroeder, the former
congresswoman, who is the president of the Association of American
Publishers, =93This is basically a business deal. Let=92s find a way to
work this out. It can be done. Google can license these rights, go to
the rights holder of these books, and make a deal.=94

The terms of such a deal aren=92t hard to imagine. The Authors Guild is
concerned that pirated copies of the books on Google=92s site could
leak to the public, and so the organization would insist on security
measures. (Sadly, for writers and publishers, demand for their
products has never been robust enough to generate a major piracy
problem.) As for distribution of the proceeds from the site, Google
might agree to share revenue with publishers, in the way that radio
stations pay for the music they play; publishers could receive a fee
based on a statistical analysis of how often their books are viewed.
Google could pay in cash or in kind, with advertising.

But a settlement that serves the parties=92 interests does not
necessarily benefit the public. =93It=92s clearly in both sides=92 interest
to settle,=94 Lawrence Lessig, a professor at Stanford Law School,
said. =93Businesses in Internet time can=92t wait around for years for
lawsuits to be resolved. Google wants to be able to get this done,
and get permission to resume scanning copyrighted material at all the
libraries. For the publishers, if Google gives them anything at all,
it creates a practical precedent, if not a legal precedent, that no
one has the right to scan this material without their consent. That=92s
a win for them. The problem is that even though a settlement would be
good for Google and good for the publishers, it would be bad for
everyone else.=94

Libraries have recognized for some time that they must adapt to the
digital age, and many have taken steps in that direction. In 1995,
Stanford founded the HighWire Press, which now provides electronic
access to more than a thousand scholarly journals. A few years later,
Stanford digitized most of its card catalogue, and circulation of its
books increased by fifty per cent. =93Once our students could sit in
their dorm rooms and find out what we had in the library, they sought
out more books,=94 Michael Keller, the university librarian, says.
Individual libraries sometimes received grants to scan specific
collections=97in 2001, the New York Public Library used federal money
to digitize a substantial portion of the collection at its Schomburg
Center for Research in Black Culture=97but a comprehensive effort
seemed inconceivable. According to Paul LeClerc, who has been the
president of the New York Public Library for the past thirteen years,
=93For the first decade of my tenure, I was always asked, =91Weren=92t
libraries going to go online?=92 And I=92d say of course we want to do
it, but it=92s not going to happen, because no one is going to give us
the money to do it. Nowhere on the horizon was that amount of money
predictable or identifiable. Then came Google. This struck us as
being the quickest, the fastest, and the most efficient way of
getting large-scale additions to our collections online for free use.=94

Among Google=92s potential competitors in the field of library
digitization are members of the Open Content Alliance, which
facilitates various scanning projects around the country and
overseas. Funded largely by Microsoft and the Alfred P. Sloan
Foundation, the O.C.A. has formed alliances with many companies and
institutions, including the Boston Public Library, the American
Museum of Natural History, and Johns Hopkins University. For the
moment, though, the O.C.A.=92s members are copying only material in the
public domain (and works from copyright owners who have given
explicit permission), which limits the scope of the projects
substantially.

Google=92s advantage may well be cemented if the company settles its
lawsuits with the publishers and authors. =93If Google says to the
publishers, =91We=92ll pay,=92 that means that everyone else who wants to
get into this business will have to say, =91We=92ll pay,=92 =94 Lessig said=
.
=93The publishers will get more than the law entitles them to, because
Google needs to get this case behind it. And the settlement will
create a huge barrier for any new entrants in this field.=94

In other words, a settlement could insulate Google from competitors,
which would be especially troubling, because the company has already
proved that when it comes to searches it is not infallible. =93Google
didn=92t get video search right=97YouTube did,=94 Tim Wu, a professor at
Columbia Law School, said. (Google solved that problem by buying
YouTube last year for $1.6 billion.) =93Google didn=92t get blog search
right=97technorati.com did,=94 Wu went on. =93So maybe Google won=92t get
book search right. But if they settle the case with the publishers
and create huge barriers to newcomers in the market there won=92t be
any competition. That=92s the greatest danger here.=94

The most striking thing about Pajama Day at Google was how few people
participated. Most of the rank and file saw the stunt for the
manufactured fun that it was. They came to work in their usual
slacker uniforms of jeans and T-shirts=97which are, in their way, as
conformist as white shirts and ties were at I.B.M. in the nineteen-
sixties. Google, as its employees seem to recognize, cannot pretend
to be anything other than a large and powerful corporation.

It=92s easy to mock Google=92s unofficial motto=97=93Don=92t be evil=94=97b=
ut there
is nothing evil about Google Book Search. At the same time, there is
nothing inherently virtuous about it. Google has succeeded because,
on the whole, it has developed excellent products; it=92s folly to
judge the company=92s behavior on moral grounds. Its shareholders
certainly don=92t.

Nor can publishers and authors, who are struggling for a way to
survive in a new age, portray their conflict with the company as one
between good and evil. The dual status of several leading publishers
as both partner and adversary to Google underscores their desperate
need to hedge their bets in a digital world that they have yet to
master. The publishers=92 complaint against Google states that =93the
Publishers support making books available in digital form so that
those books can be, among other things, researched through electronic
means.=94 That may be true in theory, but trade publishers, in
particular, have been slow to embrace new technology, especially for
out-of-print books; Google will almost certainly bring more attention
to these works than their own publishers have.

The law is supposed to resolve issues like these=97between self-
interested parties with reasonable claims and legitimate arguments.
But the rules of copyright are so ambiguous, and the courts so slow,
that the judicial system serves largely to implement the law of the
jungle. =93There is a real opportunity to move books into the digital
arena,=94 Marissa Mayer told publishers during the conference at the
New York Public Library. =93And we are going to do it together.=94




************************************************************************
***
Manon Anne Ress
manon.ress@keionline.org,
www.cptech.org

Consumer Project on Technology
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