Stephen Foley: It's good not to throw the book at Google

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The Independent Online

US Outlook: Is Google creating the world's biggest library, or the world's biggest bookstore?

Its plan to make digital copies of all the world's books, and to make them available to search online, was characterised as both in a Manhattan courtroom this week. The trouble is, Google Books is a hybrid, which is why it has been vexing the legal system here so much. Old interpretations of copyright laws are not really matched to the task, while anti-trust laws are also being invoked inappropriately. In short, it's a mess, but it is to be hoped that Google will prevail.

Think first just what a breathtaking resource Google Books already is. More than 10 million books, most of them long out of print, are available to browse to anyone with a computer. It is the internet squared. Now, you don't need to be accepted to Oxford University and get a pass to the Bodleian to have access to all this information, history and creativity.

This is an unequivocal good, and it wouldn't have happened without the Google-funded grunt work of physically scanning all these books. At the pace of pre-Google efforts, it would take hundreds of years.

But there are two main concerns. The first is that Google is no community library; it is a for-profit corporation built on the sale of advertising, adroit at mining and milking the information it collects from those who browse content through its search engines. One way or another, the company will be making money from these books.

This is not a problem for titles that are in the public domain – ie, books whose authorial copyright has expired, such as the classic novels one can pick up in paperback for a few pounds.

The issue is acute only for out-of-print titles still in copyright, many of whose authors have been infuriated that Google scanned their books without permission. They are being offered a share of any revenues Google manages to make from their work, or the chance to pull their work from the service.

This is not enough to satisfy critics, including Continental European governments, who say that Google should ask first, scan later – not the other way round. But this particular train is pulling out of the station. Copyright is different in a digital era, because copying is different. Ask music publishers and television producers. The digitally savvy share copyrighted material too often to make pre-agreements feasible, and our creative and democratic lives are richer for it.

At Google's YouTube, the legal onus is on the company to provide copyright holders with tools to quickly track down their content and decide whether to opt in or out of a revenue-sharing deal; it is not expected to conjure up the magical ability to pre-block copyrighted material. The settlement in the Google Books case sets up an equivalent system, applying copyright laws to the 21st century, and also builds in a good faith effort to tackle the problem of so-called "orphan books". Google has committed $125m to seed an independent Book Rights Registry that will track down missing authors or their heirs – another unequivocal good. The registry will disburse funds to families who, remember, are not receiving a penny today.

The second concern is that Google is about to get a court-sanctioned monopoly over the world's out-of-print titles. But if Microsoft or Amazon want to put in the hours to digitise the world's libraries, they are welcome to do so, and, by the way, to offer rights holders a more attractive revenue-sharing deal. If anything, by removing legal uncertainty, the Google settlement makes it more likely a rival could emerge.

The Justice Department, no fan of this agreement, will be keeping an eagle eye on how Google treats the copyright holders of books for whom it is the only retailer. It will be checking, too, that Google does not use its power to freeze out rivals. If Google fails to live up to its motto, "Don't be evil," then so be it.

But for now, let's not kill Google Books because of what we fear it could become. Embrace, instead, what it is: a great new resource for us all.

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