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Google Book Search Adds Big, Brave Partner: The University of California
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Posted On August 14, 2006
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But Before You Do …

The controversy surrounding the project remains. Two major lawsuits—one from publishers and one from authors—still hang over Google Book Search and its library partners. By opening up its in-copyright material as fully as its public domain items, the University of California, like the University of Michigan, clearly seems to stand by Google. This caused surprise on the part of some observers.

Allan Adler, vice president of legal and governmental affairs for the Association of American Publishers, commented: "In this dispute or any matter of a pending legal dispute, for another party to place themselves in the center of a legal controversy is probably not a good plan. UC probably looked at the two suits and noticed that in neither case was a library listed as a co-defendant. On that basis, they were probably correct." But Adler warned Google Book Search library partners: "Publishers streamlined the case by making Google the defendant and not its library partners, but this was a tactical decision. It was not based on the view that the library partners have no potential legal liability. People may assume that the libraries are bystanders. That's not the case. The libraries might well have secondary liability and contributory infringement." In particular Adler indicated publishers were watching what libraries do with the digital copies given them by Google Book Search. Contract terms for the one openly published Google Book Library Project contract (the one with the University of Michigan) include an indemnification clause, wherein Google would pay legal costs. However, Adler pointed out, "while the mutual indemnification covers a number of activities, Google's indemnification stops short on what universities do with their own copies."

Both the case filed in October 2005 by five publishers with the coordination and funding of the Association of American Publishers (http://www.publishers.org) and the case filed in September 2005 by three authors and The Authors Guild are being heard by the same judge in the federal court for the Southern District of New York. According to Adler, The Authors Guild's case, as a class action case, has different conditions that do not allow for consolidation of the two cases. However, the judge has coordinated the discovery process. Adler said, "Both sides are in the early phases of discovery with each side responding to documents and submissions." Adler expects the discovery process might take several months. However, he said, "assuming no material facts are in dispute so no trial is needed, the parties might present the legal issues with cross motions for summary judgment early next year."

A similar case was filed in Germany by WBG, a German publisher, with the support of the German Publishers Association. The Copyright Chamber of the Regional Court of Hamburg told the WBG that it was unlikely to succeed, so it withdrew its petition for a preliminary injunction. Google interpreted the decision as a rejection of WBG's argument that scanning its books in the U.S. infringed German copyright law. A WBG press release interpreted the decision as reflecting the fact that Google had withdrawn WBG books under its "opt-out" policy as rendering the issue moot. In any case, the German decision has no legal bearing on the U.S. suits.

When I asked Greenstein how the UC came to such a courageous position, he said: "Our general counsel thoroughly evaluated and weighed the issues. We looked at a number of issues and the legal issue was one of them. We evaluated the proposition as a prudent business opportunity that makes sense."

Michigan Says Go

The University of Michigan seemed to take the lead among the "G5" initial partners even at the start of the Google Book Library Project, opening up all the millions of documents in its collection. Mark Sandler, director of the Center for Library Initiatives in the Committee on Institutional Cooperation (a consortium of 12 universities with campuses in eight states) and formerly collection development officer at the University of Michigan Library, confirmed what Greenstein felt. Working with Google on this project is a great experience. Sandler stated: "The work of digitization has been going extremely well, and the relationships between the company and partner libraries has been extremely rewarding and, I believe, mutually eye-opening." Sandler expects Google to ultimately come after everything. "Google appears to be committed to capturing as much of the published record as possible, which means they will ultimately have to work with the majority of the world's libraries to extract unique resources unobtainable in even the biggest collections."

Like the University of Michigan, the UC is a public university, and Sandler sees it as held to a higher standard. "As a public institution, this is a way for the UC system to open its wealth of resources for the general benefit of the people of California and beyond. It's an important step in the democratization of knowledge that is at the core of the mission of America's public universities."

As for the problems of litigation, Sandler took a long view, one that might stretch beyond the laws on the books today, but might also promise more success even to the economically reluctant. "I don't see us turning back the clock on all of this. Technology has made wonderful things possible, and market forces are going to have to catch up to this and figure out how to position themselves as adding value in the new economy rather than insisting that we all continue to live in the old until they figure out how to protect their small—often very small—sack of gold."

How will it all turn out? Only time will tell, but one interesting insight might be drawn from an off-the-cuff remark by the final decision maker at UC. In arguing for the plan before the UC regents, Robert Dynes, president of the University of California and a working physicist, remarked: "We're on the edge of a transformation here. I have not set foot in a library in 5 years."

Get it online or leave it behind?


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Barbara Quint was senior editor of Online Searcher, co-editor of The Information Advisor’s Guide to Internet Research, and a columnist for Information Today.


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