Why publishers should embrace the evolution of “fair use”

When I meet with publishers I always ask them about the biggest problems they face in today’s market. One of the most popular answers is “discoverability.” Most publishers fret about getting lost in a sea of other books and promotional campaigns.

Life seemed much easier in the brick-and-mortar days. A publisher simply paid a retailer for premium placement, resulting in endcap promotions and books stacked in high-traffic areas of the store. Those options still exist, of course, but they’re less important now that one retailer dominates distribution and discovery.

That’s why I’m scratching my head about all the negative publisher and author reaction to the recent federal appeals court ruling on Google Books. If you’re not familiar with Google Books, it’s an extension of the search engine enabling discovery and sampling of digitized books. Many of those books are still protected by copyright, hence the delicate nature of the case.

If you’ve never explored Google Books you need to take a closer look before forming an opinion on the ruling. Here’s a quick search for “FDR” on Google Books. The first book link points to my favorite FDR biography, by Jean Edward Smith. Click that link and the first thing you’ll see is a frame with scanned pages from the book. Scroll down a bit and the following note is displayed:

This is a preview. The total pages displayed will be limited.

Every so often you’ll see more notes like this one:

Pages 2 to 9 are not shown in this preview.

In other words, what you’re seeing are merely snippets of the book. There’s no way you can read the entire work inside Google Books. What you can do, however, is search and discover more book content than you’ve ever been able to before.

For example, on page 10 of the FDR book I noticed the phrase “Richard Crowninshield of Boston”. Let’s say you’re a researcher working on a project about Mr. Crowninshield. A colleague said they read something about him in a book but they don’t recall which one. You need that source because you want to buy the book to understand the context and your research requires more than just a page or two where the reference was made.

I challenge you to find the book by searching that phrase on Amazon. I just did that and here are the search results. Smith’s book is nowhere to be found.

Now search the same phrase in Google Books and here’s what you get. One click takes me directly to that page and the left side of the screen tells me Smith’s book is what I need. Notice that Google also includes links to buy the book as well, in print or ebook format.

Publishers, wake up and realize that the largest search engine on the planet offers a powerful way for your content to be discovered and purchased. Rather than getting all litigious about this, why not embrace it and find a way to fully leverage it?

The simple truth is that as technology evolves, the notion of “fair use” is also evolving. I think this is a very good thing, and not just for Google. History is littered with marketplace incumbents who crashed and burned as they tried to protect yesterday’s model. Tomorrow’s publishing leaders will be the ones who take advantage of services like Google Books, not those trying to make it go away in a courtroom. 

Comments

[Deborah Emin]

Thank you, again, Joe. I'm going to share this with lots of people. The restrictions on discoverability are many, not least of which are those companies trying to sell new products rather than teaching new techniques. Your point here is well taken.

[Will]

The problem with Google Books is that it allows corporations to copy an entire work and use that copy for their for-profit business. Why doesn't this multi-billion dollar business buy or license the work it wants to use? Why should Google get a free pass to steal what it wants--it pays for the satellite imagery it uses in Goggle maps and restricts people's use of that even though people can only use "snippets." And satellite data is data.

Lets stop big corporations from exploiting creative workers. Sure it is convenient, but that is a poor excuse for letting corporations steal work...

[Michael W. Perry]

Quote: "There’s no way you can read the entire work inside Google Books. What you can do, however, is search and discover more book content than you’ve ever been able to before."

Take it from someone who's done historical research, including ghosting much of CQ's Presidential Scandals, what you're talking about isn't good news.

In the Old Scholarship, writers had to own or check out and presumably read much of a book they referenced in their scholarship. That benefited scholarship at multiple levels. Individuals and libraries had to buy those books, making their publication viable. Scholars had a broad knowledge of what those books said, having actually read them.

In the Goggle-driven New Scholarship, that's not true. Individuals and libraries can forgo buying books, assuming that in the not too distant future they'll be online for free. And there's no need to know what the entire book being quoted said.

In fact, the very principle of Google Book Search, those short snippets, mitigates against that. Imagine multiple scenarios for why a particular event occurred. One researcher does a Google search and finding one of those scenarios described, credits the book's author for supporting the idea. What he doesn't know is that in the very next paragraph from that quoted by the snippet, the historian being quoted makes a remark along the lines of, "But this idea is totally nonsense and is supported by nothing in the historical record." That's what Google is enabling and that's not merely bad, its awful.

One final remark. I don't blame the courts for these stupid decisions. I've been closely involved in legal disputes. This sort of sleazy scholarship, searching for useful statements in court decisions and quoting them out of context is the norm in law. It's OK to lie like that because it's the other side's lawyer who is expected to provide the corrective. Law itself doesn't expect integrity or honesty from lawyers. That's why this pitiful search-cut-and-paste sounds good to judges. But importing that 'any quote will do' mindset into genuine research will do a lot of harm. It completely removes the context from research.

Sorry, but the ones who are wrong here are the silly techie gush-crowd, who equate new with better and jump on every bandwagon that comes down the street, drums banging away. Both the geeks of Google and they know nothing about what's involved in doing good research and should show a bit more humility and a bit less eagerness to sneer about fair use evolving.

--Michael W. Perry, editor of Chesterton on War and Peace: Battling the Ideas and Movements that Led to Nazism and World War II

[Bruce]

Joe, you are conflating the two Google Books projects, the Library Project, which scans the entire book borrowed from partner libraries and provides roughly 3 line snippets of the text around the search term(s), and the Partner Program, which uses PDFs provided by the rights holders, and displays full pages from the search. When you search at Google Books, if the result says "Preview", it's a book from the Partner Program, if the result says "Snippet View", it's from the Library Project.

Here is an example of a snippet view from the Library Project:
https://books.google.com/books?id=lpoOAQAAMAAJ&q=fdr+boston&dq=fdr+boston&hl=en&sa=X&ved=0CL4BEOgBMBpqFQoTCLPP6JKegskCFcybHgodk8cCSg

Only the Library Project was contested. The authors claimed that scanning the entire work without permission and without providing them some sort of compensation was a copyright violation. The district and appellate courts decided that despite the authors' arguments, it was fair use. So, why is it important to not confuse these two distinct projects?

1) The Partner Project displays far more of the book, and at the permission of the rights holder. The large publishers (and I'm sure, many small publishers) already cooperate with Google with the Partner Program, exactly for the reason you describe, and they've been doing it for the last 9 years.
2) Many non-fiction authors believe that people finding their work through web search only need a subset of their book, and would not buy it if the result returned a large enough subset for them to view the portion of the book they really want to view. Your use of a result from the Partner Project as an example of the results of Library Project, gives these authors the false impression that the fair-use result from the Library Project will negatively impact their sales.
3) Most search results from the Library Project are from works that are out of print, and therefore "discoverability" doesn't help the rights holder very much. As Michael W. Perry pointed out over at Teleread, "discoverability" of out of print works is a potential negative impact for works that are in print if the searcher ends up going to a library or used book store to buy the out of print work instead of an in print work.
4) At one point, Google tried to come up with a settlement with the Author's Guild so that Google would be able to use the scans already created by the Library Project to sell copies of "orphan works" or at least treat them as though they were in the Partner Program. Utimately, this settlement failed, and as far as I know, Google has dropped any attempt to do anything with orphan works. If people are vaguely aware of the attempted settlement concerning orphan works, they may mistakenly think this means that the courts ruled that the proposed orphan works settlement is now public domain, which it is not.

I am cynical, and I believe that the authors and publishers pursued this case because they were looking for an additional revenue stream for out of print books, and secondarily to shut down easy access to out of print books. If they want to use Google search as a form of free advertising, they already have it with the Partner Program, but if they could force Google to pay them for freely advertising for their works, it would be even better.

[Bruce]

Oops, in point 4, the last line should be "is now fair use" instead of "is now public domain".