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October 19, 2005

Google Sued By Major Book Publishers

Courtesy of TechWeb News

Google Inc. on Wednesday was sued by a major publishing association for digitizing library books without the permissions of copyright holders, the second such suit filed against the search engine giant.

The Association of American Publishers, based in Washington, D.C., sued the Mountain View, Calif., company on behalf of members The McGraw-Hill Companies, Pearson Education, Penguin Group (USA), Simon & Schuster and John Wiley & Sons. The suit seeks a court declaration that Google infringes the rights of copyright holders when it scans entire books and stores the digitized versions in its massive database. The trade group also wants a court order requiring Google to first obtain permission from copyright holders.

Patricia Schroeder, AAP president and a former Colorado congresswoman, said the suit was filed after talks broke down. The AAP had proposed that Google use each book's unique ID number to determine if the work is under copyright, and then seek permission from the book's owner. For more than 30 years, most books have carried an ISBN identification number, which is machine readable.

Google, according to Schroeder, refused.

“If Google can scan every book in the English language, surely they can utilize ISBNs," Schroeder said in a statement. "By rejecting the reasonable ISBN solution, Google left our members no choice but to file this suit.”

While not mentioning the negotiations, Google said in a statement that the project is an "historic effort to make millions of books easier for people to find and buy."

"Creating an easy to use index of books is fair use under copyright law and supports the purpose of copyright: to increase the awareness and sales of books directly benefiting copyright holders," Google said. "This short-sighted attempt to block Google Print works counter to the interests of not just the world's readers, but also the world's authors and publishers."

The AAP is coordinating and funding the suit, which the organization said has strong backing by the publishing industry. The 20-member AAP board, which represents the group's more than 300 members, voted overwhelmingly to support the legal action.

“The publishing industry is united behind this lawsuit against Google and united in the fight to defend their rights,” Schroeder said.

Google announced its Print Library Project last year, saying it planned to digitize books from the collections of Stanford University, Harvard University, the University of Michigan, Oxford University and the New York Public Library. The latter two are making available only books in the public domain.

Google later suspended the copying of copyrighted works, in order to give publishers time to contact the company if they objected to having their books stored in Google's database. The company, which says it won't make any money directly from listings of library books, plans to resume the project Nov. 1.

Publishing companies, however, object to having to contact Google, arguing that its up to the search engine to seek permission.

“While authors and publishers know how useful Google's search engine can be and think the Print Library could be an excellent resource, the bottom line is that under its current plan Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers," Schroeder said.

The AAP has received support outside the publishing industry. The Software and Information Industry Association has sided against Google, even though it supports the concept of digitizing works, whether books, movies and music, and making it all available to the public. The SIIA, however, draws the line when works are copied and made available on the Web, in any form, without permission.

"The idea of making information and content available to the public over the Internet is a great idea," Keith Kupferschmid, vice president of intellectual property policy and enforcement for the SIIA, said. "But the way Google has implemented the program is very problematic."

The AAP suit followed by about a month a similar action taken by the Authors Guild, which filed its class-action lawsuit in federal court in New York. Joining the guild in the suit were Herbert Mitgang, a former New York Times editorial writer and author of fiction and nonfiction books; Betty Miles, an author of works for children and young adults; and Daniel Hoffman, the author and editor of poetry, translation, and literary criticism. Hoffman was the 1973-74 U.S. Poet Laureate.

In defending the library project, Google points to fair use, an exception in the U.S. Copyright Act that allows for the reprinting of portions of copyrighted material for certain purposes, such as criticism, comment, news reporting, teaching, scholarship and research.

Experts, however, argue over whether Google is protected under fair use. Those who side with the company point to a 2003 case, called Kelly vs. Arriba Soft Corp., in which a photographer sued a search engine for displaying thumbnail images of work that originally appeared on his Web site. The photographer claimed copyright infringement, but the Ninth Circuit ruled against him, saying that the act of copying the material, even for commercial purposes, was not exploitative and therefore was fair use.

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