Amid Microsoft's Protest, Google Book Search Enlists German Library

In the wake of fallout over a Microsoft attorney's public comments yesterday before the Association of American Publishers, chastising arch-rival Google for an effort he said would undermine the rights of copyright holders worldwide, the Bavarian State Library has signed a pact with Google Book Search that will enable the search provider to index and publish online a major portion of its holdings.

But in an indication of how libraries may continue to treat Google with caution, the Library stated it would only allow Google Book Search to index works whose terms of copyright had expired. Still, the pact is likely to enrich Google's online repertoire with a huge collection of not only German-language works, but also Spanish, Italian, French, Latin, and English texts, including rarely seen works that explore the history of Eastern Europe.

"With today's announcement, we literally open our library for the whole world," stated the library's general manager, Dr. Rolf Griebel (translated from German), "and bring the true affirmation of libraries - the discovery of books and knowledge - a crucial step closer to the forefront of the digital age. It is a fascinating challenge to put the rich literary tradition of Germany at the disposal of every reader worldwide."

Today's move also represents a continued warming up of German literary authorities to the efforts of Google, which were given a much colder initial reception in 2005. At that time, the major scientific trade publishers' association in that country, WBG, requested that a regional court in Hamburg order an injunction against Google that would stop it from indexing and publishing its members' texts.

Under the Google "opt-out" program, the company announces its intention to index as many works as possible -- or, in more grandiose terms, everything ever published -- with the exception of works whose rights holders file objections.

WBG's efforts were perhaps inspired by the protests of the president of France's national library, Jean-Ntzel Jeanneney, who since the inception of the Book Search program has presented extensive legal and moral arguments against it. Among them is the principle that no service should assume it has the pre-existent right to forward or distribute any information, not just because it disrespects the rights of publishers and the foundation of an industry, but also because such a right must be extended further to everyone, not just Google - which invalidates the whole point of copyright.

If someone in China has the pre-assumed right to publish everything you say or write or perform, one of Jeanneney's arguments condenses down to, you may as well write off the information industry as a whole. On the other hand, if someone in Germany has that pre-assumed right, and that someone - like Google itself, which he once sited for having acceded to German government requests that specific .de Web sites be removed from its index - decides arbitrarily which information will not be published, whose business does it become to counteract the forces of censorship?

In addition, publishers and content providers who would seek to thwart the efforts of Google and others, Jeanneney states, would be likely to implement more restrictive DRM provisions, resorting to technical measures of protection when legal ones fail. And that simply perpetuates another evil. His treatise on the subject has been translated into English and is available for sale through Amazon. In a delightful irony, Jeanneney's book has also been indexed by Google Book Search.

Despite the moral arguments which gave underpinning to WBG's request, last June, a Hamburg court found Google's Book Search efforts -- including the "opt-out" program -- were not in violation of German copyright law. Google agreed to exclude WBG members' works from the index, and WBG withdrew its petition.

Still, today's statement from the Bavarian Library emphasized that Google would only be indexing "copyright-free" content. Even when it borrowed some of Google's boilerplate text describing how its Book Search typically indexes portions of copyrighted works, making only those portions available for public sampling as "snippets," the Library added that it and Google would only concentrate on non-copyrighted works.

In response to Microsoft's Thomas Rubin's comments yesterday, and in advance of the Bavarian Library announcement, Google chief legal officer David Drummond released a statement: "The goal of search engines, and of products like Google Book Search and YouTube, is to help users find information from content producers of every size. We do this by complying with international copyright laws, and the result has been more exposure and in many cases more revenue for authors, publishers and producers of content."

In an interview with the legal journal The Recorder, Electronic Frontier Foundation attorney Fred von Lohmann took an interesting stand on the subject that is neither pro-Google or pro-Microsoft. Instead, von Lohmann suggested people focus on a broader moral issue, not unlike Jeanneney's plea: whether preserving the exclusivity rights of major traditional publishers endangers the rights of minor publishers and individuals.

"The question here is not about do you like Google better or Microsoft," von Lohmann remarked. "The question is, do you want a world where you can innovate first, or you have to hire lawyers and ask Hollywood's permission?"