I learn from Michael Geist’s blog that in the New Yorker this week, Jeffrey Toobin has an excellent piece on the Google Books project and the litigation it has spawned. It is well informed, and balanced, both qualities which have been sadly lacking on all sides of the debates about the project. Of his several good points, three stand out; though one of them might not be true on this side of the Atlantic.

Toobin’s first point is the often-overlooked but crucial fact that much of what Google is currently doing is covered by existing agreements with publishers. His second is that, in respect of Google’s disputed scanning, the litgation is likely to be settled and agreements put in place to cover that too. This seems to me to be right. Paul Aiken, the executive director of the Authors Guild, one of the parties to one of the suits against Google, rather made this point when he said: “Google is doing something that is likely to be very profitable for them, and they should pay for it. …” In other words, its all about agreeing how much Google should pay, and what rights they actually buy for their money. On the other hand, Brian Appleyard, writing in the Sunday Times the weekend before last, is more pessimistic:

A deal may yet be done, but neither side sounds in a compromising mood, and it looks likely that this will go all the way to the Supreme Court, whose ruling on this case may prove momentous.

Toobin’s third point relates to the legal arguments Google is making in response to the litigation:

Copyright law has never forbidden all copying of a protected work; scholars and journalists have long been allowed to quote portions of copyrighted material under the doctrine of fair use. Google maintains that the chunks of copyrighted material that it makes available on its books site are legal under fair use. We really analogized book search to Web search, and we rely on fair use every day on Web search. David C. Drummond, a senior vice-president at Google who is overseeing the response to the lawsuits, told me. Web sites that we crawl are copyrighted. People expect their Web sites to be found, and Google searches find them. So, by scanning books, we give books the chance to be found, too.

So, my copying of that paragraph from Toobin’s article and pasting it here does not infringe the New Yorker’s and Toobin’s undoubted copyright in it. And it may very well be that Google’s argument about the fair use doctrine in US copyright law is correct. But even it is, that would be true only of US law. And Google are seeking to digitise books from outside the US: for example, Toobin says that Google is scanning books from libraries not only in the US (eg the university libraries at Stanford, Harvard and Michigan, and the New York Public Library) but also in Oxford. And, trite as it may seem to say it, I will say it anyway: US law does apply in Oxford. So, if Google want to justify their UK scanning, they will have to rely on UK law, not US law. And here’s the rub: while US law has the general ‘fair use’ exception, the UK’s law does not (nor, it seems, is it likely to any time soon). The relevant UK legislation (and for that matter its Irish equivalent) instead provides for various exceptions allowing “fair dealing” (usually of short extracts) for the purposes of research or private study, criticism or review and news reporting. Even if Google comes within the US “fair use” exception, they are highly unlikely to come within the UK (and Irish) “fair dealing” exception. And I am sure that Google already know this. This means, of course, that they have even greater incentive to come to an agreement with non-US (especially UK) publishers. It will be interesting to see whether Appleyard’s or Toobin’s predictions on this pan out. Appleyard ends his piece thus:

… David Worlock of Electronic Publishing Services said, Ultimately it’s not up to Google or the publishers to decide how books will be read. It’s the readers who will have the final say.â€?

No, it is the teachers who will have the final say. …

No – as Daithí: has just said to me – it is the lawyers who will have the final say!

PS: I can’t resist this, which I found whilst looking up some of the stuff linked above; it’s a New Yorker cartoon about Google. Enjoy!

Update (23 March 2007): Larry Lessig Four anti-Google Book Search fallacies – all in one, single essay; Michael Madison Authors, Eat Your Vegetables!; Daithí Mac Sí­thigh Why Digitise?. Lots in these pieces relevant to the post above. Most interestingly, I learn that the UK scanning relates to out-of-copyright books only. Could this perhaps be that, as discussed above, whilst the Google Books project might just comes within the US “fair use” exception, it is highly unlikely to come within the UK “fair dealing” exception?