A Fight for Control.

Frustration over Google's refusal to engage in meaningful discusssions to address publishers' concerns about the Google Print for Library project, as well as the possible loss of control of their product, were the two main factors behind the AAP's decision to file a copyright infringement lawsuit against the giant search engine company last week.

Although publishers had several meetings with Google executives, talks stalemated over Google's insistence that it does not need permission to scan books into its search engines. "We were nowhere near a mutual decision" to resolve the scanning issue, said one publishing executive. The final straw for many publishers came October 5 when publishers received a letter from Google reminding them that on November 1 Google would resume scanning copyrighted books for the library project unless Google was notified that particular books should be excluded. The so-called opt-out option was unilaterally implemented by Google this summer, but has been rejected by publishers as contrary to copyright laws, a stance reiterated in the publishers' lawsuit.

Google has positioned its library project as part of its mission to make all the world's information available, but publishers see scanning of copyrighted materials without permission as the first step in the possible loss of control over their content. "Google's continuing and future infringements are likely to usurp publishers' present and future business relationships and opportunities for the digital copying, archiving, searching and public display of their works," the lawsuit states.

While Google, a company renowned for innovation, has announced no plans to sell book content online, the possibility that it will find a way to monetize such book data looms large. "Google is saying, 'trust us,' but publishers are right to demand control," a copyright lawyer said. If publishers were to license this material, the lawyer said, they would likely put in place such things as quality and quantity controls.

The lawsuit also reflects a deep division between publishers and Google over the meaning of fair use. Google compares scanning books to its copying of materials online, a comparison that publishers contend is faulty. There is little fair use law pertaining to the Internet, however, and, as one copyright lawyer said, this dispute "will develop case law in the electronic age over what is fair use."

With so much at stake, this is a case neither Google nor the publishers can afford to lose. Not surprisingly, lawyers are not expecting a quick settlement. It is also likely that the Authors Guild suit filed last month (Foreword, Sept. 26) and the AAP suit will be heard by the same judge, although they may not be consolidated since the Guild is asking for damages and the AAP suit seeks only an injunction.

If nothing else, Google Library has united publishers, authors and agents. The Guild said it welcomed the AAP suit, while the Association of Author Representatives sent a letter to Google voicing its support for both the AAP and Guild and called the library project "an egregious violation" of copyright law.

The next move is Google's. The company has asked for, and been granted, an extension until mid-November to reply to the Guild's complaint.

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By Jim Milliot