Digital Books Project: Orphans Slay Google!

Google is usually able to defeat, or at least survive, the challenges that confront it.

Online searches? No problem! Google long ago surpassed all of its rivals in terms of market share, and more recently survived Microsoft’s roll-out of its snazzy Bing service.

Mobile phones? A piece of cake! Despite the powerful competitive presence of Apple’s iPhone, Google’s Android system reigns as the market share leader of that sector as well.

Global geopolitics? Even there, Google has managed to survive its ongoing tussles with the Chinese government. Recently, it successfully shifted its search servers to Hong Kong in order to avoid the threats of censorship and online surveillance.

But in Google’s most audacious project of all, its efforts to digitize all of the books of the world’s greatest libraries, the firm met its match last week. Surprisingly, it was stopped in its tracks by a group of orphans.

The Books Library Project

Google’s mission, as it declares on its Corporate Information web page, is “to organize the world‘s information and make it universally accessible and useful.” Its flagship search engine certainly achieves this goal for information that the world places on public web pages, but until recently it had no ability to reach and organize the material in paper books and records.

To address this need, Google launched its Books Library Project, a venture undertaken with Oxford University, the New York Public Library, and a wide array of similar institutions. Its goal is to scan all of the world’s literature into a vast online data base, making millions of books searchable through the internet. But the publishers of the books howled, complaining that Google and its library partners has no right to scan their copyrighted works into privately owned computer servers.

Google appeared to reach agreements with the world’s major book publishers several years ago, promising to restrict the ability of online search users to seeing just a few snippets of book text, and establishing a policy for sharing revenues from book sales. But early last week, a judge tossed out that agreement in order to protect the rights of a group of orphans.

Down The Food Chain

Interestingly, the judge’s decision appeared to address a glaring oversight in Google’s digital book strategy; namely, that the firm failed to reach all of the way down the food chain of copyright ownership. In other words, although Google managed to develop agreements with the publishers of the books and the libraries to which they were sold, it appeared to forget that an additional group actually controls the copyrights to many of the world’s published works.

Who is this party? Collectively speaking, they are the original authors of the works. Although many publishers develop “work for hire” agreements with writers that assign control over all copyright issues to the publishing entities, others permit writers to continue to control their copyrights in perpetuity. For such works, author permissions need to be obtained before copyrighted works can be scanned into (and then distributed through) Google’s new digital medium.

The publishers do have the ability to reach out to all known authors and obtain their requisite permissions before finalizing their arrangements with Google. But they have no way of doing so for books that were authored decades ago by writers who later died without leaving clear trails about the individuals who inherited the authors’ rights under copyright law.

The book industry refers to such works as orphan works because they are, from a legal perspective, left without legal owners (or “parents”) when their authors pass away. The judge ruled that Google cannot digitize the entire collections of the world’s great libraries unless it tracks down the heirs of the copyrights of each of these works, an activity that is pragmatically impossible.

No Signs of Surrender

It is difficult to believe that Google will simply close down the project, considering its track record in conquering far more daunting obstacles. Indeed, its Books Library Project home page shows no signs of surrender, indicating that the firm will likely search for a strategy that can satisfy its legal constraints.

For instance, some legal experts believe that all orphaned works should be made widely available on a non-exclusive basis after publishers make reasonable efforts to search for copyright heirs. Such an act would address the court’s concern about the legal privileges of the private owners of copyrighted material, particularly when such individuals cannot be located easily. It would also enable other digital service providers to compete with Google in the market for digitized works.

At the moment, there is no indication that Amazon, Apple, and Barnes & Noble are about to jump into the fray. Nevertheless, with customers of the Kindle, the iPad, and the Nook continually searching for content to peruse on their e-book readers, it may not be long before Google confronts a wide new array of challengers in this sector.

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