But our rhetorical go-round hinted at something fundamentally true about Brin and Page and the dynamic company they have forged. Their starting predicate is that the old ways of traditional media are usually inefficient, and scream to be changed. This is a reason Google fundamentally misread the reaction of publishers and authors. While Google did reach various agreements with a variety of libraries, including Harvard, Stanford, the University of Michigan, Oxford University, the Library of Congress, and the New York Public Library, publishers did not like the idea of not getting paid for the use of their books. The Association of American Publishers denounced Google’s plan as an invitation to piracy, for the books stored on servers would be vulnerable to hackers. Publishers claimed they could be hit by the same thunderbolt that struck the music industry: free downloads.
Richard Sarnoff, the chairman of the Association of American Publishers and the executive vice president of Random House, said, “Google went to libraries and said we will digitize all your books and just use snippets of copyrighted books. They said it would be good for libraries and for users. This is true. But we have laws in this country which govern what we can do and not do. Like copyright, which prevents people from copying things for their own commercial use. And this is for Google’s commercial use, for search.” The publishers demanded that Google seek their permission before digitizing any book that was still protected by copyright. “The Internet is a grazing medium,” Sarnoff said. “Books tend to be a longer term experience.” Grazing can be a great way to promote a book, he said. “But we want to be extremely careful to make sure discovery does not become consumption.” To illustrate his fear of piracy, he pulled out his iPhone and said that the small device can hold fifty thousand books, all easily down-loadable. This, he noted, is the approximate capacity of a midsize bookstore. In October 2005, the publishers announced that they had filed a lawsuit.
Paul Aiken, the executive director of the Authors Guild, wanted authors to share in any profits from their books, but said his primary concern was piracy. He mentioned “the huge risk” posed by backup copies in Google’s possession and the libraries. “Google is giving back to the University of Michigan a digital copy of each book for their own use. What happens to the University of Michigan copy?” What happens, he said, when they share the copy with other Michigan libraries? What happens “if they lose the backup?” Or it’s hacked into? Sarnoff was also concerned that Google’s definition of “a snippet” was vague. A longer snippet from a novel is likely too brief to rob the book of value, he said. But a snippet of a reference book may be “taking real value” from the author. In a fundamental sense, the differences between Google and its Silicon Valley allies, who want to share information, and publishers and authors, who want to be compensated for it, boil down to a definition of property rights. On the Internet, it is common to make copies of pages and share the information of those who produce content. In traditional media, such “sharing” is often considered theft. The Authors Guild also filed a lawsuit against Google.
To David Drummond, Google’s senior vice president of corporate development and chief legal officer, the difference came down to this: “Fair use is as important a right as copyright infringement. It is a balance that is struck between encouraging people to innovate, and a public sphere.” He defined a snippet as similar “to a Google search. You see just two or three lines.” He rejected the idea of sharing revenues with publishers and authors for the snippets that would appear in a book search, likening a Google search to a book review, which no one claims as a violation of copyright law. As for pirated copies from the libraries, he said, “We’ve got provisions in the library agreements that they agree not to abuse. We would hope that these are major institutions that take their copyright responsibilities very seriously. These are also research organizations that have not insignificant expertise in data security.” The president of Stanford, John L. Hennessy, who is on the Google board, agreed that university libraries have to “guarantee” the security of digital books. But he wants to keep the focus on “finding a way to move forward,” to bring the information in books to people. “We need to rethink our copyright framework that is still a remnant of the past. In the digital age, for example, why should the library buy a physical copy of a book? Why can’t the library just buy a digital copy?” Physical books, he adds, are “too big. They cost too much to store. They’re too hard to deal with, and they’re too hard to search.”
Columbia University law professor Tim Wu supports Google’s efforts to digitize books, which he also sees as essential for comprehensive search. But he thought Google was being evasive. “If they had a copyright lawyer among their founders,” he said, “they never would have started the company. The basic business of a search engine is to copy everything. To make your copy, and then search it. The first thing that happens, arguably, is infringement of copyright law. I say ‘arguably’ because there’s never been a case on it. From day one, Google went out and copied the whole Internet. Can you imagine a company starting in the film world and the first thing they did was make a copy of every film in existence? That company couldn’t have gotten started. The Web is always about copying, but copyright law is all about making copying illegal.” There is an unavoidable disconnect between the two.
Over the next several years, the Association of American Publishers and the Authors Guild lawsuits wended their way through the legal system. While they did, another disconnect surfaced: a contradiction between Google’s push to liberalize the intellectual property rights of others while protecting its own. Buried in Google’s 260-page 2004 IPO prospectus is this admission: “Our patents, trademarks, trade secrets, copyrights and all of our other intellectual property rights are important assets for us. There are events outside of our control that pose a threat to our intellectual property rights.” They cited the politics of other nations, the various legal interpretations. Then they provide a sentence that could have been uttered by a publisher: “Any significant impairment to our intellectual property rights could harm our business or our ability to compete.”
Looking back, many of Google’s nonengineers admit, when asked, that Google made a mistake by not more closely consulting and coordinating their efforts with publishers and authors. “I think that’s true,” said Megan Smith, Google’s vice president of business development, who explained that “we moved too fast” and “involved the Authors Guild much later” than we should have. “We’re a technology company,” chimed David Eun, vice president of strategic partnerships. “We thought people would understand that we had good intentions.” Asked if Google was guilty of innocence or arrogance, Paul Aiken of the Authors Guild said, “It’s probably both.”
MEL KARMAZIN THOUGHT it was arrogance. Having left Viacom earlier in 2004 after an unhappy half decade with Sumner Redstone (and before it was split into two companies, Viacom and CBS), he was now the CEO of Sirius satellite radio, which blankets the United States with a cornucopia of radio options. He described an early meeting he had with Tim Armstrong, Google’s sales chief. “The first thing he said was, ‘We have so many advertisers that we don’t have enough content in which to put all of this advertising, so we would like to get into selling radio advertising.’” Armstrong proposed to sell national satellite radio spots the way Google sold search words, in an auction.