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.
Good points, Mike. I agree with you about books as a historical practice. However, there may be a user interface issue here as well (easier to read content in print than electronically). Also, I wouldn’t diminish the role of print as a TPM-surrogate–this has been historically true, and it still plays a role today.
Also, in my mind, there’s no Q that Google is a media company and not “merely” a search engine. Or, more precisely, I don’t know what the difference is. In my Emory article, I made the argument that search engines exercise editorial control over their database in a manner that’s indistinguishable from the practices of other media companies.
Eric.
I agree with you, but there are some subtle differences worth pointing out.
First, I think that it’s fair to distinguish the TPM-like *effect* of the book form (it does tend to discourage copying) from the purposeful deployment of TPM technologies in electronic contexts. The plaintiffs are making a sort of DMCA argument. They seem to suggest that by choosing to publish their works as “books,” they are entitled to a presumption against “circumvention” of their “technology.” That’s both silly and wrong. I understand that they’re trying to distinguish Google Print (bad) from Google search (OK), but the distinction just doesn’t hold up. If it exists, it has to come from somewhere else.
Second, on the “media company” point, and speaking objectively, you’re probably right (though I pause to note that there is a “what is a media company?” issue lurking here). But the plaintiffs aren’t interested in objectivity. They’re making a rhetorical point. If Google is a “media company,” then it’s a big, commercial, *competitor.* And we know that big, commercial *competitors* aren’t entitled to rely on fair use. Don’t we?
Google’s stock gets regularly compared to Time-Warner (a media company if ever there was one). That’s no basis for a legal argument, but who thinks Google isn’t a media company? One of the points of the opt-in Google Print program is to deliver content from books. That’s definitely competition with the publishers.
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