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John Battelle’s The Search and Google Book Search

John Battelle’s The Search and Google Book Search

While I was writing a review (to appear soon) of John Battelle’s prescient book The Search, I noticed something on the copyright page.  Here it is:

Noscan

This warning seems directly aimed at Google Book Search, a project which intends to scan the collections of some of the world’s great libraries and make them searchable online. Now you can find similar language on the copyright page of lots of books but John Battelle is a known strong supporter of the value of having almost everything searchable as anyone who reads either his book or his blog knows.

So I emailed John and asked him about the apparent contradiction.  He said the decision was the publisher’s (Penguin) decision to make but “I totally disagree with it.”  Of course, at the time he signed his contract with Penguin, no one knew that this issue would exist.  He readily agreed to talk to me it.

Q: “Why didn’t Penguin want your book to be in Google Book Search?”

John: “They’re suing Google over Book Search. They’re part of the Publisher’s Association suit.”

Q:  “What are they afraid of?”

John: “They’re afraid of the future.  Afraid of what they don’t know…. It’s very irritating to me.”

Q: “Do you think that the warning in the front of the book will deter Google from scanning your book or will Penguin have to specifically opt out of Book Search for this title?” [nb. Google has said that it will honor specific requests from publishers to have works currently under copyright excluded.]

John said that he didn’t know for sure but, if this warning were enough to deter Google, then the publishers probably wouldn’t feel they had to sue.  They are objecting that they have to opt out title by title to keep their books from being scanned.

Q: “How do you think this issue will be resolved in the far future – not the lawsuit but the underlying issue?”

John: “Publishers should be service providers and let authors make these decisions.”  He went on to say that, now that the Internet and fast computers exist, you don’t need to make decisions like this en masse; you don’t need huge corporate entities making a one-size-fits-all decision.; authors themselves can choose from a myriad options.  This one of the principles of his newly formed Federated Media.

Q: “How will you handle rights for your next book?”

John: “Differently.”  He did say he hasn’t written it yet.  I’m sure he’ll blog about it when he does.

Just to be clear, as John knows, Google Book Search is carefully designed NOT to be a replacement for buying a book.  It is a way to SEARCH the entire contents of a book and get back some context around the search term.  It has been carefully designed so that reading a book on Book Search is, if not impossible, extremely unpleasant and much more difficult than buying the book.  Moreover, when you find a book with text that matches your search term, Google helps you find your way to a physical copy of the book by saying where it purchased and what libraries it’s at.

Many of the FAQs around Book Search are to explain to readers that there are many things they can’t do because Search is meant for searching and NOT for reading.

Publishers can submit books to Google in order to get them quickly into Book Search and make sure there are the proper promotional links.  We did that with hackoff.com: an historic murder mystery set in the Internet bubble and rubble (it’s here on Book Search) but that was an easy decision given that we serialized it and its podcast free on the Internet anyway. Although there are disadvantages to self-publishing, freedom from publisher-restraints is not one of them.

What the publishers object to is that Google is also scanning the contents of some libraries including books which have NOT been submitted by the publishers and ARE still under copyright.  Google describes what they’re doing this way:

“When you click on a search result for a book from the Library Project, you'll see the Snippet View which, like a card catalog, shows you information about the book plus a few snippets – a few sentences of your search term in context. You may also see the Sample Pages View if the publisher or author has given us permission or the Full Book View if the book is out of copyright. In all cases, you'll see 'Buy this Book' links that lead directly to online bookstores where you can buy the book."

It’s hard to imagine that many authors will object to having their books made more discoverable in this way.  It’s strange NOT to find the premier book on search in this huge catalog. Makes the last sentence of Penguin’s prohibition – “Your support of the author’s rights is appreciated.” – seem particularly hypocritical.

[Full disclosure: this blog, Fractals of Change, is a member of the authors’ network Federated Media which was founded and is run by John Battelle.]

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Listed below are links to weblogs that reference John Battelle’s The Search and Google Book Search:

» Oh, The Irony from AdPulp
Novelist and former CEO, Tom Evslin endeavored to write a review of John Battelle's book, The Search. John Battelle is a strong supporter of having most everything searchable. Therefore, Evslin was surprised to see this disclaimer at the start of... [Read More]

» Battelle's publisher is suing GOOG, so GOOG can't index his book from Boing Boing
John Battelle -- "band manager" for Boing Boing and author of The Search -- is upset that his publisher, Penguin, is suing Google over Google Book Search. That has resulted in The Search -- a book in large part about Google -- not being available throu... [Read More]

» The Search's Copyright: A Good Discussion from Foreword
Tom Evslin, author of hackoff.com, mentioned not too long ago, has a good conversation with John Battelle, author of The Search which is about Google et al regarding the copyright warning in his book: This warning seems directly... [Read More]

» Google BookSearch-Friend Publishers? from n.sputnik
As reported by BoingBoing, Tom Evslins blog Jason Kottkes blog, and by John himself, Penguin Group, who publishes John Battelles book, The Search, a book about the rise of Google, is sueing Google over the Google BooSearch progra... [Read More]

Comments

Mr. Bubble

Please, stop promoting this Battelle guy. He is poison. Things going ok with the Internet, with your business, with your life? Good, then don't deal with anything involving John "Internet bubble collapse" Battelle.

Some of you surely had experiences with Battelle's previous bloody abortions of the Valley. Industry Standard, anybody? You know, that thing that collapsed five years ago?

Look, whatever that guy is around is FINISHED. How many more people have to lose their careers and homes and lives for this guy's schemes?

Rose von Perbandt

There are no limits to hypocricy and arrogance-publishers need to respect the copyrights of others. Despite repeated cease and desist notices and the fact that the infringing use of Ed Miracle's copyrighted artwork was stopped in the U.S. & U.K.-copies of the book with the infringing cover continue to be promoted and sold in India (by Penguin India) and other countries where I.P.enforcement is difficult to enforce. It's inexcusable! The World is not Flat enough!

q

I'd like to add to my previous comment that my references concerning Doctorow's position are in respect to his article cited by the "Robotech Master":

http://www.boingboing.net/2006/02/14/why_publishing_shoul.html

These comments are not in reference to any of his other writings (which for all I know may have corrected for the errors contained therein). Sorry about not making that clear from the get go.

q

Comments on Doctorow's position:

Doctorow assumes that fair use in this context includes the conversion of content from one form of fixation to another. This is contrary to the statutory language of § 106, which holds that the owner of copyright under this title has the exclusive right "to reproduce the copyrighted work in copies or phonorecords.” A reproduction is a reproduction, and consequently the default assumption is against Google unless it can raise an affirmative defense that protects its actions.

Now, Doctorow's arguments are either consistently flawed or barely supported by conjecture. Since my time is limited, however, I will instead tackle the central part of his argument, which is that the activity is protected by fair use. If you want more than that, you will have to ask.

Now, while amateurs of fair use analysis love to obsess over the four factors listed in § 107 as the basis for their conclusions, it is rather a naive way to consider the matter. Doctorow actually somewhat recognizes this in his post, but he also makes statements like “[t]he four factors are a floor on the public's rights in copyright, not a ceiling -- they're the minimum criteria that signal the fairness of a use.” This statement demonstrates one of Doctorow’s misunderstandings of the fair use doctrine, as the statute says in § 107 that “[i]n determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [the four fair use factors].” It says absolutely nothing about whether they are conclusive of the matter. A court could choose to find that all four factors indicate fair use and yet still decide against a finding of fair use. See Harper & Row v. Nation Enterprises (Supreme Court upholds a “first right of publication” that is used to skew the traditional four fair use factor analysis for news against a finding of fair use.) Doctorow points a different example of the court ignoring four factor analysis (Sony Corp. of America v. Universal City Studios, Inc.), though he fails to mention that it’s considered an open question on whether Sony is still good law anymore. Regardless, as the case law often demonstrates, reliance on the four use factors for a justification of fair use is a lousy way to practice law.

Instead, the best question to ask when it comes to fair use is to ask whether the activity in question invades an existing market for copyrighted works or one that is highly likely to develop. Since the alleged infringement here is reproduction of books into digital form, all we need ask ourselves is whether there is a market for books converted from paper into bits. In essence, did Google need to make these reproductions, or could it have purchased them? Of course, we all know that the answer is that there is a market in electronic books, which Google could have purchased access to.

(Note: Some people call this the “one fair use factor analysis,” in reference to the idea that the principle behind the fourth factor listed in § 107 is the only real consideration to be made in fair use analysis. If you read Harper Row v. Nation Enterprises and cases thereafter like Princeton v. MDS, you’ll see that this notion isn’t too far fetched.)

So, why then, should there be any finding of fair use if Google can buy electronic books instead of scanning printed ones? Doctorow argues that it is because of the end user’s activities that such a finding of fair use should be found. That position, however, is ignorant of the strongly established doctrine that one can very rarely (if ever) use the fair use rights of another party as a defense to one’s own infringing activities. The question here is not whether the user of Google’s search service is doing something that is fair use. The sole matter is whether Google’s actions considered alone are non-infringing, regardless of other people’s actions. Thus, Doctorow’s finding of fair use based on user activities is without merit.

The important thing to realize here is that Doctorow is treating two separate issues as the same. The first one is whether I have a fair use right to reproduce material already available in a commercial market. The answer to that is most likely no. The second is whether my ownership of an electronic version of copyrighted content can allow me to create a content search engine protected by fair use. On this matter, there exists far stronger arguments for finding fair use, but even if the courts agree, it does not likely bear any weight on the answer to the first question.

Note: I apologize for the tenor of my earlier comments about Batelle’s own personal interests. They were probably a bit more off the cuff than were appropriate.

Peter da Silva

"Many authors love Google search, because it allows them to free ride on Google's activities. Instead of having to pay for more exposure and advertising, Google's activities can provide it to them for free."

In other words, Google's book search makes the book a more valuable commodity, and increases sales. Lexis/Nexis and other services don't have nearly the same effect because they're not priced to attract casual search.

"Google doesn't want to share its revenues from advertising, click-throughs, or any other indirect source of revenue they can develop from search."

On the other hand, the publisher doesn't share with Google the direct revenue of the increased sales due to the increased exposure that the abovementioned "free riding" provides.

Regardless of the legalities if the situation, you can't claim the the publisher does not benefit from the service.

It strikes me that it may be Lexis/Nexis who is behind this, that they're complaining to publishers about Google competing with them, and demanding similar terms.

Let them open their services to anyone for free and THEN talk about a better deal.

Cory Doctorow

"he sold the rights to his book and should live with the consequences."

It's a common fallacy that trade and fiction authors assign their copyrights in the manner of musicians and performers; in truth, though, it's rare to see work-made-for-hire or straight copyright arrangements in trade/fiction publishing. It's not clear that Battelle has assigned the exclusive right to authorize the indexing of his book to Penguin. Certainly, none of the seven fic and nonfic books I've sold to four different publishers involved licensing an indexing right.

Robotech_Master

You make a compelling argument. But on the other side of it, so does Cory Doctorow.

http://www.boingboing.net/2006/02/14/why_publishing_shoul.html

In the end, this sort of issue is exactly why we have courts to begin with. There are very good arguments to be made on both sides, so what is needed is a disinterested third party to hear both out and make a decision.

It will be interesting to see how the outcome of the suit turns out.

q

It's nice and all that he's upset, but he sold the rights to his book and should live with the consequences. Of course, it's in his selfish interest for Google to put his book on their search engine, but why should Penguin (the actual holder of the property interest) agree without getting some compensation in return? Google, last I checked, is there to make money on their book search service after all.

From a search perspective, there isn't anything all that new about Google Search. Westlaw and Lexis Nexis have for many years provided search ability over copyrighted material. Of course, they pay the copyright holders for the privilege and, as a result, so do the users of their databases.

Google Search simply attempts to move the search of protected works to an advertising model to generate revenue. Is this such a paradigm shift that it shouldn't have to go through the trouble of paying copyright holders anymore? If so, than why are other rival services looking to pay copyright holders for search rights? If these competitors think they can provide the same service and make money without invading property rights, than what argument is there for fair use? One might argue for orphaned works, but that is exception in this issue and can be dealt with as a separate concern.

Let's be honest and put aside the "moral" outrage and admit that this is about money for all the parties involved. Many authors love Google search, because it allows them to free ride on Google's activities. Instead of having to pay for more exposure and advertising, Google's activities can provide it to them for free. Since authors tend not to derive too much benefit from their work after it is sold (except perhaps for additional royalties from book sales), the other benefits of ownership in IP that a publisher might want to protect is of little interest to them.

Meanwhile, Google doesn't want to share its revenues from advertising, click-throughs, or any other indirect source of revenue they can develop from search. Google just wants the benefit of other people's property, without the bother of having to compensate them for it.

Finally, publishers and Google know that search has value. Lexis Nexis pays for it. Others pays for it. More importantly, requiring permission for the commercial use of their copyrighted works ensures that in conflicts of interests, the publisher or author won't be left out in the cold. Rather than Google doing what is financially best for themselves, they'll also have to respect the financial or creative interests of other parties, whether it is publishers or authors, due to their contractual agreements.

(Sidenote: The difference in a default rule being "opt-in" or "opt-out" has value in itself. So one should keep in mind that changing the default rule is essentially a transfer of financial benefit from one party to another.)

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