Life in the digital age is searchable: that is the best thing about it.

Say you want to make dinner, but the only ingredients in the larder are ginger, spring onions and peanut butter. You could comb through every cookbook on the shelf and end up making chicken satay.

Alternately, you could turn to Ask Jeeves or Google or any other respectable search engine, and torture your taste buds with eclectic entrées such as Thai grilled turkey pizza, coconut peanut curry, west African groundnut stew or south-east Asian peanut burgers. With Google and peanut butter, the possibilities are myriad – if not all equally edible.

So why not let Google do for books what it has already done for the rest of online life: link everything together?

Google wants to make entire libraries searchable, so that ordinary mortals can quickly find the books they want to read, the same way they find peanut burger recipes. However, authors and publishers (including Pearson Education, a sister company to the Financial Times) are suing Google, claiming that the project violates American copyright law.

This could turn out to be one of the most important lawsuits of the internet age – a case that could test the legality not just of searching books, but of searching anything online.

Digitising books is one of those cool new ideas from the early internet era that just never seemed to catch on.

Now, suddenly, digital books have again become a hot topic and the commercial giants of the online world – Amazon, Google, Microsoft and Yahoo – are tripping over themselves to offer business models to attract the online reader of serious writing.

Soon the literati will be able to rent whole books online, or buy tomes a page at a time; but the mother of all digital book efforts, the Google Library Project, remains in legal limbo.

Much more is at stake than the fate of a few – or even a few million – books: Google is proposing to create a gigantic virtual card catalogue of the collections of some of the world’s greatest libraries. Anyone with a mouse and an internet connection – and not just those with money and access to those libraries – will be able to search the catalogue for any title, however obscure.

Google will not be giving books away for free: the Google project is not “Napster for books”, says Tim Wu, copyright expert at Columbia Law School.

Google will merely reproduce a few snippets of text around the search term entered by the reader – just enough to figure out whether the book is worth a cover price in double-digit dollars.

Readers will be directed to other sites where the book can be purchased legally or borrowed from a local library. Google will sell advertising around the book searches, just as it does with web searches. So who exactly is harmed by this?

Speaking as the author of a long-forgotten, but still copyrighted, book that would likely be included in the Google print project, I cannot imagine a reason why my publisher would turn down this form of free advertising.

Some books may be so valuable that no publisher wants to give away even a few sentences online, but most are not. There are millions and millions of worthy niche titles, so why prevent Google from publicising them?

But the Authors Guild and the Association of American Publishers say Google must get permission from every author before searching their work.

Google says it would be far too costly – not to mention impossible, in the case of authors who have long since lost touch with their publishers – to contact every scribbler beforehand. However, Google would give authors the opportunity to opt out of the search – if they think their book has a better chance of being noticed by lurking indefinitely on a shelf of the New York Public Library.

Pat Schroeder, chief executive of the AAP, went on the radio recently to explain why she rejects Google’s arguments. She sees no reason why the carpet-bagging technies at Google should rake in all the advertising lucre without sharing it with authors.

Ms Schroeder also worries that, once Google has digitised all these books – which it will have to do, in order to search them – there will be nothing to stop the company from Napsterising in the end and giving whole books away for free.

But Google is not planning to steal books, it is just planning to search them. If theft were the object, authors and publishers would have a stronger case in court.

Instead, the lawsuit turns on the question of whether Google’s universal card catalogue would constitute “fair use” under American copyright law. Reasonable minds may disagree about that: fair use is a nebulous concept that changes over time; no court has firmly fixed a definition of it for the internet age.

Some of the other online giants have come up with digital book projects that are less legally problematic than Google’s, either because they only digitise works that are already in the public domain, or they only index works with permission.

But Google is right to push the boundaries of what is legal. Its project
has the potential to revolutionise the way that we search for information online.

It is worth remembering the basic purpose of copyright law, which is to encourage creators by rewarding their efforts, without stifling new creation.

The basic social compromise over copyright can surely only be furthered by indexing all this creativity so that other people can find it.

Google may make money doing that – but authors and publishers will almost certainly make money too. That sounds like the classic win-win bargain that underlies American capitalism – and American innovation.

Copyright The Financial Times Limited 2022. All rights reserved.
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