Yahoo Claims it Isn't Building an Online Library

In its response November 20 to a subpoena it received in October from Google, seeking information Google claims is relevant to its defense against two lawsuits concerning the legality of its plans for developing an electronic library of literary works, attorneys for Yahoo argue that their client is not actually developing a competing project.

Instead, the legal brief claims Yahoo is merely financially backing a project in which plaintiffs in the case against Google are involved, and does not exercise any authority over that project. Though the brief does not state so explicitly, language scattered throughout also implies that Yahoo is not necessarily the online host of this project.

"Yahoo has not launched an independent book scanning project or a 'Yahoo Book Project' as defined by Google in the Subpoena," the response reads. "Instead, along with over 40 other entities, including public libraries, major colleges and universities and leading Fortune 500 companies, Yahoo has backed a non-profit alliance run by the Open Content Alliance (OCA) and Internet Archive to digitize books and make them searchable through any web search engine. Yahoo supports the approach adopted by the OCA which digitizes only text in the public domain or where copyright holders have expressly given permission for such works to be included, and Yahoo exercises no direction and control over the OCA's operation of its project."

Yahoo's position contradicts its announcement from early October, which appeared to place it in a leadership position on the OCA project.

Two lawsuits -- one from authors, another from publishers -- challenge Google's rights to digitize the content of books of its choice, while only giving publishers the option of "opting out" of Google's list, so long as it provides Google with a written explanation.

"If you're not a Google Books partner and want us to avoid your books," reads Google's FAQ to publishers, "you'll need to provide us with a small amount of information about yourself as well as a list of the books you don't want in Google Book Search. Unless you specify otherwise, we'll use your information only to verify that you are indeed the owner of that particular book."

The Authors' Guild, representing more than 8,000 individual authors and a vocal supporter of the OCA project, filed the initial class action. Its suit claims that, when Google claimed it obtained the rights to digitally reproduce the contents of the University of Michigan library, and was seeking similar rights with regard to four other college libraries, it did so without regard to the rights of the copyright holders of the books in question.

The Guild lawsuit's implications are first, that no library has the right to enable what would be, in effect, the republication of material that happens to be in its holdings; and second, that no company has the right to develop a commercial service around others' copyrighted works, without their permission or without regard to their right to be involved.

Google's original agreement with the University of Michigan states that Google Library's search process for digitized content was to remain free to the public, with special access made available under the U of M brand. But the two sides left open the right to negotiate a "distribution fee" for the delivery of found content - essentially whatever Google had planned to charge anyway, or whatever reasonable fee the two parties could come up with later. The agreement goes on to note that neither party has the right to act as a licensing agent for copyrighted content. When one party discovers, for instance, that a work thought to be in the public domain actually isn't, it would notify the other in due course. What actions that party would then take, aren't specified.

So the picture the original agreement tries to draw, in this case, is of a college library simply making its holdings more accessible by means of someone else volunteering to serve as its "digital bookmobile."

The Authors' Guild's original complaint is worded very simply, and to the point: "The Named Plaintiffs and the Class own a valid copyright in and to at least one Work that has been copied by Google. They, not Google, have the exclusive rights to, among other things, reproduce their Works, distribute copies of their Works to the public, display their Works, and to authorize such reproduction, distribution, and display of their Works."

The Authors' Guild, in this case, represents authors and not publishers, who argue in a separate complaint that copyright applies to them when they make publication deals with those authors. The plaintiffs in the subsequent suit against Google are The McGraw-Hill Companies (which operates the Osborne/McGraw-Hill imprint), Pearson Education (which runs the Addison-Wesley, SAMS, and Que imprints, among others), Pearson Group USA (the Penguin imprint), Simon & Schuster (the US' largest), and John Wiley & Sons (which runs Dummies Press).

"The Publishers support making books available in digital form so that those books can be, among other things, researched through electronic means," reads the publishers' complaint. "One such means involves the recently announced Open Content Alliance, involving a cooperative effort among publishers, libraries and Yahoo. Unlike the Google Library Project, OCA will make books accessible to any search engine (including Google's). Also, unlike the Google Library Project, entire works will be made available with the permission of copyright holders in ways that protect their rights.

"The Google Library Project, however, completely ignores those rights in favor of Google's own economic self-interest," the publishers' complaint continues, going on to draw a picture of how it qualifies as a commercial endeavor, by increasing traffic to Google and enabling it to charge advertisers more for all of the pages it serves.

Next: Google claims "fair use."