Connecticut: My Battle Against Google

‘I cursed and gaped. I closed and reopened the web site and there it all was again, three years of work, plus debt and lack of medical care and some rather bizarre house-sitting to save on rent while I finished the manuscript on a small advance, with the promise of rewards in proportion to the book's sales.’

The international publishing community has been following with special anxiety Google’s efforts to win exemption from basic property provisions of copyright law. But it must feel relief over an interim court victory in September. A hearing scheduled for 7 October — during which Google was prepared to argue for unique privileges for exploiting a database of (so far) five million books scanned by the company from the University of Michigan library collections — was postponed so that the parties could negotiate with an alarmed US Justice Department. Judge Denny Chin, in granting the request for postponement, cited the worldwide interest in the case: “The current settlement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, non-profit organisations, and prominent authors and law professors. Clearly, fair concerns have been raised.”

I could hardly be more involved in the controversy. I am an alumna of the University of Michigan and a member of the US Authors Guild, which is a party to the proposed settlement. I am “included” in the settlement because of my four US-copyrighted books. I am also a client of the literary agency (Writers’ Representatives, LLC) that has made the most noise against the deal and I became a formal legal objector along with most of the firm’s other clients. But I also lived in South Africa for ten years, published a book there and was a member of Pen South Africa, an affiliate of the largest international organisation of professional writers. 

My South African experience is perhaps the most influential in my thinking about the case. Google’s behaviour towards copyright so far is strikingly like what I saw in African publishers dealing with African authors. Google has gone to where the Third World has been all along, and is already at (in Western terms) a post-legal, post-national, post-free-market stage. For a long time, while in the usual way the law has lagged behind technology, the company has been freely wielding some heavy faits accomplis.

I found out about the Google Book Partners Programme through a Q&A about the proposed settlement that the Authors Guild emailed to me. The programme, the Q&A emphasised, was not part of the settlement — that is, here is what Google is doing without being challenged about its legality. 

 ”Google books” is apparently already a well-established entity, widely touted, as Napster once was, and as the settlement is being now, as a way to bring neglected creative work to light. There are two major components: the “Partners Programme”, for publishers and authors, and the “Library Project”, obviously for libraries.

Unpublished and self-published authors have been drawn to the “Partner Programme” in large numbers, for the same reason garage musicians were drawn to Napster: they feel they have nothing to lose and they are promised significant exposure. But publishers have also quietly and routinely been giving permission for Google to display in-print books whose copyrights they hold, even though normal book contracts don’t seem to allow publishers to make this decision on their own. But there is, in practical terms, nothing to stop them. Anyone can authorise himself to submit any number of books simply by ticking the box next to the words “I verify that I am the copyright holder or authorised by the copyright holder for the titles I plan to submit.” 

When I clicked on the link in the Q&A and searched under my name, I found that all four of my in-print books were in the programme, the covers displayed down the left-hand side of the screen. Checking a few weeks later on Google book Search, I saw all five of my books, including the out-of-print one, Other Places, published in South Africa, for which all the rights have reverted to me. The cover was shown as blank and brown, and there were no inside pages displayed.

Google hopes to monetise such a book legally, even after failing to find the author or his heirs or other rights holders in order to get permission and pay royalties. (Most books of the past century require this treatment, as a book typically goes out of print in a couple of years, yet its copyright protection lasts for decades longer — in the US and the EU, this is now set at 70 years after the author’s death.) 

For the proprietor of a super-duper web search engine, Google doesn’t appear to be looking very strenuously for authors. My name on the front cover and the commercial unavailability of Other Places argue that I’m the obvious and only rights holder, yet nobody asked me for my consent to feature the title in Google books. And it’s not that I’m hard to find: I just Googled myself and got 87,700 hits. I’m reminded of the scene in Shrek II in which the companions steal the clothes of a pair of travellers and promise to make amends — unless they can’t find the men, or unless they forget. 

Google may also consider it unimportant that this is a foreign book, for which a US court can’t conceivably assign any default rights (even if that court believed it could assign default rights to American books). Again, the book’s status would be plain to anyone looking: the copyright page cites only a publisher and address in Johannesburg and other publishers would be noted on the internet if they were involved later. Not to give a hoot about foreign copyrights would make strategic sense for Google, as it is an excellent bet that a typical foreign rights holder would never know that the web giant was exploiting his book and would be unable to do anything if he did. 

Google’s promise is to revive and sell my book, but it’s challenging to see how this can be done, with or without page display, and the system seems designed to do the opposite. There are links to booksellers below the title and (blank, brown) cover of Other Places, but of course none of these booksellers have copies. In contrast, the “Find in a library” button led me to the Yale library system (I’m a visiting scholar at Yale, and was working on a Yale computer), with its interlibrary loan facility, where I was invited to register. I quickly did so and requested the book. The request was refused, because it turns out that Yale owns a copy. I ordered free delivery to the library I work in, and the copy arrived within 24 hours. I have it on my desk now. I had planned to revise and republish it, after arguing to a publisher that used copies were going for up to $200 on eBay. They aren’t any more. I wonder why.

Two medical books that I co-edited on a work-for-hire basis for a European-based pharmaceutical company appeared (also with blank covers) under my name, as if I had rights to them, though I was only a consultant. They weren’t available through the booksellers listed or through Yale libraries or interlibrary loan. These books belong to a series summarising all of the peer-reviewed scientific allergy research in the world, and the company produces, copyrights and distributes them on its own. It’s a mystery who gave permission for the titles to go into Google books looking as if they’re American, and mine, and out of print. But it’s a certainty that the books’ mission, and the cause of knowledge in general, are not being served by their appearance on this web page.

Three of my four in-print American books are from a single publisher. From each of these three books, 20 per cent of the pages were on display continuously from the beginning of the book. The fourth book had a 20 per cent display, but only some were in continuous series. Again, the easy library option put me in doubt that this was a way to sell books. 

I asked both my American publishers to remove my books from the programme on the grounds that the contracts don’t allow for this kind of use without my consent, and that the “Find in a library” facility was a deadly difference from’s displays. The editor of the first three books stalled and eventually offered to have the page display removed, but only in exchange for my signature on an ebook contract that my agents and I had already rejected three times. The contract was appended to the editor’s email ultimatum. 

The editor of the fourth book, my recently published Aeneid translation, which is selling well, readily agreed to have the page display removed from Google books but said that this might take a while. When I checked two weeks later, 100 per cent of the book was on display, scrollable from the now pathetic-looking copyright page to the end of the glossary — 308 pages, and the back cover. 

I cursed and gaped. I closed and reopened the web site and there it all was again, three years of work, plus debt and lack of medical care and some rather bizarre house-sitting to save on rent while I finished the manuscript on a small advance, with the promise of rewards in proportion to the book’s sales. Now the book was being given away for free in Yale Divinity School Library, which is open to the general public. Unable to believe that this wasn’t a special Yale subscription, I checked on my laptop, which is not registered or networked with Yale: there the book was again. Anyone with an internet connection could read the whole thing, courtesy of Google. 

The publisher had no idea how this had happened. Maybe this is how Google retaliates when an author demands that a book be removed, or maybe it was just a mistake. (By the evening, no pages were shown.) But what do I do about it? Sue Google? How do you even talk to anyone at Google? I looked around the internet and sent emails when I began to write about the company, and was generously referred here and there. Of course, I asked my publisher why Google was flaunting my whole book, but it just might be that anyone responsible for anything that happens at Google is more inaccessible than the Saudi royal house to a Western journalist asking about progress of Saudi women towards the right to drive. 

It is easy to get stuck in flabbergasted and fuming mode over Google’s behaviour and not consider that the company is behaving entirely rationally. Its marketing (or rather, post-marketing) formula — fabulously successful so far, especially where music is involved — is that content is fuel. The strategy is more or less explicitly laid out in Chris Anderson’s book, Free

If Google wanted to sell books, as Amazon or Barnes and Noble do, it would sell books, but that would be the dumb, boring, old-economy game, with money-making limited by supply and demand in the realm of real goods. Google makes its money from selling ads. More books not sold, more people flitting between more free displays or free library orders mean more page hits and more ad revenue. For a consumer to order a book from Amazon, turn off the computer, and sit down and read it through, without any enticements in front of him to order Viagra or find out his credit rating or search for long-lost classmates, is the last thing Google wants. 

Google books is carefully designed to train readers to treat books in the way most profitable for Google, as an undifferentiated mass of very briefly interesting enticements — which is largely what music has become in the age of 97 per cent illegal downloads. The brilliance of the strategy, as with music, is that the prophecy of legitimately free content will quickly fulfill itself: without ownership rights, with no claim to a share in whatever money they generate, creators of content can’t spend enough time on it or compete with each other properly. They can’t hope to create anything worth money. Older creators can hang on, still make money (in music, it is through concerts, and perhaps the reading circuit will revive for writers), but for the youngsters there will be no answer to Google’s assertion, hidden under cant about “choice” and “access” and “opportunity”, that they deserve nothing but to work for free for Google. They won’t be good enough to do anything else.

In the ancient world, slavery was justified on the grounds of slaves’ ignorance, poor physical development and untrustworthiness. These were caused by slavery, but they were hard facts in the face of the relative abstraction of long-term and general causality, and these hard facts justified the system for at least the thousand years we know about. As a practical matter, rights are very difficult to establish — or re-establish — because the results of oppression create their own rationale for keeping things just the way they are.

The dangers from Google to the free flow of information are obvious: the Chinese government’s main partner in censorship is a scary candidate to be a monopolist in publishing. But the dangers extend to the creation of information — indeed, to the creation of all significant content. This publishing monopoly won’t be motivated to sell books at all but rather to eat them. It will get more calories out of the books the more quickly it digests them, reducing their value to that of manure, or to nothing. It will get more calories from junk-food books, empty of thought and never demanding to be considered seriously and treated differently from each other. A special kind of book may evolve to meet Google’s needs, a book with maximum hype on the outside and minimum cause for pause on the inside. It will be for all practical purposes an ad and Google’s publishing venture will ingest itself, but not before the company directors have socked away enough cash to buy themselves a medium-sized tropical country and retire in peace, far from the wreck of the West.

Whew! I’m an author, so I’m used to equating my personal well-being with the fate of civilisation. But I never seriously expected my whining to have anything to do with the movement of history. Now, it just might. Perhaps for some of the same reasons, the next few months will be tantalising and exciting not only for me but for a lot of people who wouldn’t look at my Aeneid if it bit them on the bottom.

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