Among all the many sources for news about the latest lawsuit challenging Google Print, I’ll link to this one over at Conglomerate, not only because Gordon Smith links to my post there on Google Print I, but because Gordon includes the quote that Mark Lemley (Stanford Law School) gave the Wall Street Journal: “The consequences of a loss for Google are enormous. If the publishers were to actually prevail in this lawsuit, I think it would be essentially impossible to maintain a search engine.” That confirms and extends my earlier view: This is not only bet-the-company litigation, it’s bet-the-Internet litigation.
The new complaint (online at http://www.publishers.org/press/pdf/40%20McGraw-Hill%20v.%20Google.pdf) has a number of interesting features. For now, I’ll mention two:
First, it characterizes Google as “one of the world’s largest media companies.” (par. 22) True or not, it’s a slick move; the problem will be making it stick. Even the least technologically-savvy district judge is going to know something about Google as search. Can the plaintiffs prove the judge wrong?
Second, the complaint characterizes the book — dead-tree technology — as a sort of “technological protection measure” that publishers use to guard their copyright interests.:
On the Internet, website owners have alllowed their sites to be searchable via a Google (or other) search engine by not adopting one or more technological measures. That is not true of printed books found in library shelves. (par. 29)
That’s a really interesting statement. It’s also highly misleading, but it’s really interesting. Publishers don’t deliver manuscripts in book form because they’ve decided to block digital scanning and searching. Publishers use books because they’ve used books, and readers have used books, for centuries. That bookbinding is an impediment to piratical copying is a useful by-product of the form, but to imply, as the plaintiffs do, that “the book” is comparable to a robots.txt file that wards off well-behaved spiders, or to strong encryption that thwarts unauthorized users, is (to coin a phrase) spectacularly inappropriate.