By Michael Stillman

With time running out to file legal objections to the agreement between Google and publishers for the former to sell digitized copies of in-copyright books, the opposition has grouped to make a final stand. The "Open Book Alliance" is playing the role of General Custer in this last stand, though naturally they hope for a better outcome. The Alliance includes a variety of groups, some commercial, some not, some perhaps spurred by altruistic motives, others with obvious competitive commercial interests at stake. The final hearing in court is scheduled for September 4, with a decision by October 7.

A few years ago, Google reached an agreement with several important libraries, such as Oxford, Harvard, New York Public, later expanded to many more, to scan and digitize old books in their collections. The project (Google Book Search) promised to make vast amounts of hard if not virtually impossible to find information available to researchers and the curious all over the world from the convenience of their personal computers. There has never been anything close to this project in terms of making the knowledge of previous generations available to people of today. While Google does not release figures, we estimate that they probably have scanned around 10 million books by now.

Of course, a project of this magnitude is bound to run into conflict with the private interests of someone. In this case, it was the publishers and writers who saw the fruits of their labor/investments about to be converted to private use without their receiving compensation. For books published before 1923, there was no issue, as these copyrights had long ago expired. However, books published after 1922 could still be under copyright, but Google was scanning and making these books available to the public with no payment to the copyright holders.

Despite the fact that many of the post-1922 books might still be under copyright, Google plowed ahead with their project, including the digitization of many of these books. The first to object were the Authors' Guild and Association of American Publishers, representing the two groups with a financial interest in copyrighted books. They demanded Google cease. Google refused. It might sound logical that Google first seek permission to digitize copyrighted books, but this is not as easy as it sounds. Much research is required to determine which books are still under copyright, and it is even harder to locate the copyright holders if they are. Who do you seek permission from or pay for a 1925 book whose author died in 1930 and whose publisher went out of business in 1935? Seeking permission in advance was essentially the same as saying these books could not be made available digitally to the public. They were doomed to be left to die on a handful of scattered library shelves, never seen, and eventually de-accessioned into oblivion. Google stood between them and this fate.

After some contentious public debate, Google reached a settlement with the authors' and publishers' organizations. Essentially, it provided for the copyright holders to receive 63% and Google 37% of revenues gained from selling access to these digitized books. Writers and publishers gained an opportunity to once again make money from out-of-print books that no longer provided any income at all, the public gained access to these "lost" texts, and Google had an opportunity to make some money in return for making all of this information available to the public. Copyright holders who did not like this settlement were free to opt out and keep their books out of Google's book search. It was a win-win-win proposition. Not so fast.

The Open Book Alliance, which is making the most vocal objections to this arrangement, is a consortium of private interests and public-spirited groups. It includes both of Google's major search rivals, Microsoft and Yahoo, and book (including e-book) competitor Amazon. It also includes several library and printing organizations which may or may not have conflicting private interests, and the Internet Archive, a wonderful, public-minded organization that has been scanning old books longer than Google and provides that outstanding database of websites as they appeared in the past, the Wayback Machine. The Internet Archive digitizes, for free public access, out of copyright and in-copyright books, but seeks copyright holder permission first before scanning books that are still under copyright protection (however, we might note, they do not seek permission to make available the older and deleted versions of copyrighted websites found in the Wayback Machine, even though the owners might wish those earlier iterations would disappear). Not surprisingly, the Internet Archive collection of digitized books is tiny in comparison to Google's.