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A crew of authors and book publishers are trying to shipwreck Google’s Book Search project by shouting copyright infringement. Instead, they should welcome the endeavor. Book Search is an amazing effort to bring to every computer desktop the search abilities of the card catalogs at America’s greatest libraries. It will benefit readers, researchers, and writers. Any author — and that includes me — should be glad to find his work in Google’s card catalog. The Book Search project began with a bang in December 2004, when Google announced a partnership with several premier libraries to make digital copies of the books in their vast collections and then to permit a user to search the text of these books using the Google search engine. Google neither sells the digitized books nor makes them available in their entirety online. Like the rest of Google, Book Search is easy to use. Go to books.google.com and type in a phrase or click on “Advanced Book Search” for more focused results. Google presents those results in what it calls the “Snippet View,” which shows just a few sentences of the text with the search terms highlighted. If the publisher or author has given Google permission, it shows full sample pages. And if the book is no longer under copyright, the whole book is accessible. Equally important for authors worried about lost sales, there is a “Buy This Book” link directing users to online bookstores. Google is working hard to sell this service. It offers an informative set of frequently asked questions and testimonials from authors, publishers, librarians, students, readers, and the media. But Cory Doctorow, author of Down and Out in the Magic Kingdom, may have explained the value of this project most effectively when he wrote on boingboing.net in February: “[Google Book Search] puts books on a near-equal footing with other information resources. . . . Physical books will always suffer the disadvantage of forcing a reader to actually make rendezvous with a lump of atoms that is like as not thousands of kilometers from her at the moment that she wants to refer to them. But with [Google Book Search], ebooks and fast fulfillment from etailers, at least books will maintain their position in readers’ attention, and capture people who don’t set out to find a book.” But not all authors grasp Google’s vision. WRITERS’ IMAGINATION Some publishers and authors claim that Book Search violates their copyrights and will cost them book sales. They brought two lawsuits last year alleging copyright infringement. In McGraw-Hill Cos. v. Google and Authors Guild v. Google, they are demanding a take of the online company’s revenues. One of Google’s responses is to let people opt out of the project. Google’s contracts with the premier libraries — Harvard, Stanford, Oxford, the University of Michigan, and the New York Public Library — specifically recognize that authors may withhold their copyrighted works from Google’s digitization if they wish. But the disgruntled publishers and authors are pushing for an opt-in requirement. Of course, forcing Google to wait for permission from thousands and thousands of authors would likely doom the whole project. Fears that hackers will systematically retrieve Google’s full digitized versions of the books are also absurd. The time and effort to rebuild a book, snippet by snippet by snippet, would not be worth any paltry gain to the hacker. And a booming black market in digitized books stolen from Book Search is nothing more than a figment of writers’ imagination. Fears that Book Search will cannibalize hard-copy book sales are equally exaggerated. Just as looking at a single stone of the Taj Mahal would not discourage trips to see the world wonder, reading the words “June 17, 1972. Nine o’clock Saturday morning. Early for the telephone. Woodward fumbled for the receiver and snapped awake” will not dampen sales of All the President’s Men. Perhaps that is why those bringing suit did not identify the loss of even one sale. On the other hand, Richard Lowry, a military historian and the author of The Gulf War Chronicles, has had the opposite experience. “The exposure from Google Book Search has helped immensely,” he says on the project’s Web page. Google reports that when The Gulf War Chronicles first appeared in Book Search, Lowry saw his sales ranking on the Barnes & Noble index jump “considerably” — by 85 percent. Contrast this free publicity with the fact that the authors and publishers now seeking some of Google’s profits have done nothing to build the search engine from which they now benefit. ABSOLUTELY FAIR USE More important, Google’s Book Search is a good example of the fair use defense to copyright infringement. Book Search enables the instant retrieval of passages relevant to research topics. The speed and ease of retrieval promote scholarship that is more thorough. Book Search surveys many lesser-known books that might be overlooked with more lead-footed search methods. It raises the standard of academic excellence by eliminating excuses for neglecting relatively obscure works. One does not have to shoehorn this educational tool to make it fit within fair use. A strong analogy is the limited copying permitted for classroom use under the Copyright Act of 1976. Under the 1976 act, a teacher may make a single copy of a book chapter; a short story, essay, or poem; an article from a periodical or newspaper; or a chart, graph, diagram, or drawing without risking copyright liability. Book Search retrieves much smaller snippets from books while also serving an educational purpose — allowing scholars and readers in general to find more easily the wealth of published works. The fair use doctrine serves an important role in offsetting the copyright monopoly, which Congress conferred to encourage writers to create and publish. Bear in mind that the Constitution does not guarantee copyright protection. It simply authorizes Congress to legislate on the matter. And Congress has not been stingy in providing protection. In 1976, lawmakers extended an author’s copyright monopoly from two 28-year renewable terms to life plus 50 years, and then in 1998 extended it again to life plus 70 years. That means that authors today have the allure of life plus 70 years of copyright monopoly to induce them to produce. There is clearly no need to extend this monopoly protection even further by prohibiting Google’s digitization of books. Washington Irving, James Fenimore Cooper, Nathaniel Hawthorne, Herman Melville, Louisa May Alcott, Mark Twain, and Walt Whitman all labored with far fewer legal and monetary incentives. MAKE WAY FOR INNOVATION While lawsuits will eventually solve this dispute over what constitutes fair use, they are expensive and chilling to Google, to would-be educational online innovators, and to any other search engines that want to enter this endeavor. There is another way: Congress should entertain legislation that would establish a safe harbor for Book Search and similar online-learning jewels. There is certainly historical precedent to justify legislative involvement. Congress, after all, engaged in similar reform for particular online transmissions in the Digital Millennium Copyright Act of 1998, which shields Internet service providers from copyright liability for material they merely transmit. Civilization is always in a race, where slowing down is losing ground. The law should encourage technological innovations that promote learning and scholarship, not place hurdles in the way. Google’s Book Search will narrow the educational divide by giving every child with Web access the ability to search the collection of the greatest library online.
Ronald D. Rotunda is the George Mason University Foundation professor of law at George Mason University School of Law.

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