Another nail in the coffin of Google’s global library

The Google Print Library Project (s goog) sounded like such a brilliant idea when it was first launched in 2004: The search giant said it had partnered with a group of prominent universities and would scan millions of out-of-print and hard-to-get books — in effect, creating a vast digital library of more than 15 million volumes that would be available to anyone. Then reality hit, in the form of a lawsuit by publishers and authors, saying the company didn’t have the right to scan their books. A settlement agreement, which took years to hammer out, was thrown out by the courts last year, and now the Author’s Guild is suing the universities that originally partnered with Google for copyright infringement. It’s another nail in the coffin of Google’s global library.

The Author’s Guild in the U.S. and its counterparts in Australia, the United Kingdom and Quebec have filed the suit, along with a group of individual authors, claiming that their rights are being infringed by the book-scanning and indexing that several universities — including the University of California and Cornell University — have been engaging in, both with Google and on their own. The lawsuit also names the HathiTrust, a nonprofit entity created by a number of universities, including Harvard and the Library of Congress, to manage the digital collections created by the book-scanning project.

Is scanning itself an act of copyright infringement?

The claims in the lawsuit are fundamentally the same as the claims that were made in the lawsuits that author and publisher groups originally launched against Google over the Library Project: namely, that scanning a book is an act of copyright infringement — unless the entity doing the scanning gets the express permission of the publisher and/or author who owns the rights to the work. According to the lawsuit:

[B]y digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works’ rights holders, the universities are engaging in one of the largest copyright infringements in history.

Google’s argument in the cases that it fought over the Library Project was that the scanning and indexing of books was covered under the “fair use” principle, which allows for copyright infringement under certain circumstances — including copying for research purposes and “transformative” works (for example, Google won a court ruling that said copying images and providing thumbnails for the purpose of image search was fair use). The search company offered to remove any titles that authors or publishers didn’t want provided through Google Books if requested to do so.

Authors and publishers, however, argued that this kind of after-the-fact permission put the onus on them to determine which books should or shouldn’t be in the company’s index, and they have said Google itself should seek permission up front before scanning anything. The search company tried to settle the claims with a mammoth $125-million agreement that was signed in 2009, but it didn’t last — a court ruled last year that the terms of the agreement were unacceptable in a number of ways.

The ruling is long and fairly complex, but the biggest issue for the judge who struck down the agreement seemed to be that Google wanted to retain permanent rights to any “orphaned” works — in other words, books whose owners or rightful copyright holders couldn’t be found after a certain period. Since the decision, the agreement has effectively been in limbo, although there is a new hearing scheduled for later this week that could see the deal either resurrected or the case go to trial.

Will Google decide it simply isn’t worth it?

In some ways, the arc that the Google Books project has taken mirrors the evolution of Google’s increasingly contentious public image: When the idea was first hatched, it seemed like a perfect example of the kind of ambitious — and even slightly foolhardy — mission Google was well-known for, like taking photos of all the streets in the world and providing them for free. But just as Google StreetView has taken a beating in the past couple of years as a result of privacy concerns, so the Google Library Project has been vilified as an attempt by Google to control the world’s books.

While there is a good case to be made that Google’s scanning of books — and therefore the actions of the universities in the HathiTrust — is fair use as it has been defined by the courts, it remains to be seen whether the company has the stomach to continue the battle. New CEO Larry Page was one of the original architects of the Library Project (which was inspired by Project Gutenberg), but he has also made it clear that he wants Google to pare down the number of things it is doing, and he has been shutting down all kinds of ambitious projects. Will Google decide to simply mothball its idea of a global library?

If Google does pull back from its vision, the universities in the HathiTrust could be on their own, fighting the authors and publishers who want to maintain their control over the world’s books instead of allowing Google to provide them for free. And that in turn could ultimately kill the idea of a global library where all books are available, leaving us in a fragmented world with competing providers such as Amazon (s amzn) — which is reportedly considering a subscription-style “Netflix for books.” Is that the future of the digital library? And is that the kind of future we want?

Post and thumbnail photos courtesy of Flickr users Marcus Hansson and guldfisken