When I meet with publishers, I always ask them about the biggest problems they face in today’s market. One of the most popular answers is “discoverability.” Most publishers fret about getting lost in a sea of other books and promotional campaigns. Life seemed much easier in the brick-and-mortar days. A publisher simply paid a retailer for premium placement, resulting in endcap promotions and books stacked in high-traffic areas of the store. Those options still exist, of course, but they’re less important now that one retailer dominates distribution and discovery.

That’s why I’m scratching my head about all the negative publisher and author reaction to the recent federal appeals court ruling on Google Books. If you’re not familiar with Google Books, it’s an extension of the search engine enabling discovery and sampling of digitized books. Many of those books are still protected by copyright, hence the delicate nature of the case.

If you’ve never explored Google Books you need to take a closer look before forming an opinion on the ruling. Here’s a quick search for “FDR” on Google Books. The first book link points to my favorite FDR biography, by Jean Edward Smith. Click that link and the first thing you’ll see is a frame with scanned pages from the book. Scroll down a bit and the following note is displayed:

This is a preview. The total pages displayed will be limited.

Every so often you’ll see more notes like this one:

Pages 2 to 9 are not shown in this preview.

In other words, what you’re seeing are merely snippets of the book. There’s no way you can read the entire work inside Google Books. What you can do, however, is search and discover more book content than you’ve ever been able to before.

For example, on page 10 of the FDR book I noticed the phrase “Richard Crowninshield of Boston”. Let’s say you’re a researcher working on a project about Mr. Crowninshield. A colleague said they read something about him in a book but they don’t recall which one. You need that source because you want to buy the book to understand the context and your research requires more than just a page or two where the reference was made.

I challenge you to find the book by searching that phrase on Amazon. I just did that and here are the search results. Smith’s book is nowhere to be found.

Now search the same phrase in Google Books and here’s what you get. One click takes me directly to that page and the left side of the screen tells me Smith’s book is what I need. Notice that Google also includes links to buy the book as well, in print or ebook format.

Publishers, wake up and realize that the largest search engine on the planet offers a powerful way for your content to be discovered and purchased. Rather than getting all litigious about this, why not embrace it and find a way to fully leverage it?

The simple truth is that as technology evolves, the notion of “fair use” is also evolving. I think this is a very good thing, and not just for Google. History is littered with marketplace incumbents who crashed and burned as they tried to protect yesterday’s model. Tomorrow’s publishing leaders will be the ones who take advantage of services like Google Books, not those trying to make it go away in a courtroom.

The above is reproduced with permission from Joe Wikert’s Digital Content Strategies. Screenshoot via Wikipedia.


  1. Getting more discoverability by being one of millions of titles in Google books? That makes no sense. It’s like going to a football game to be noticed. If anything, present day authors with books in print should want to discourage using Google Books. Amazon puts them in competition mostly with books in print. Google Books extends that to books printed long ago.

    Claims that this is fair use don’t wash either. A searchable full-text displaying snippets is almost identical in practical terms as making a movie from a book. In both the fact that only a sample (i.e. snippets) are taken doesn’t alter the fact that its the whole that provided that sample and thus the whole that’s being used. You need permission from the copyright holder to make a movie. You need permission to provide snippets from a full-text search. And besides, many of us have bought digital versions of books just to be able to search them even though we have a print version. I did just that with The Hobbit and The Lord of the Rings.


    Google Books is also a disaster for research. In past research, the fact that someone quoted a book suggested they were familiar with all that it said. They’d gone to the trouble to check it out or buy it. Now it means nothing but that the passage popped up in some Google search. The snippet quoted could be totally out of context or the book itself written by a looney who would only be outed by reading the entire book. Snippets and scholarship simply don’t go together.

    Journalism is going down this same path to sloppiness and inaccuracy. When I was sued by the Tolkien estate (unsuccessfully) for Untangling Tolkien, I was contracted by reporters from around the world for months and months. I saw first hand how the Internet was making them lazy.

    Initially, I blamed Christopher Tolkien, ticked off that he couldn’t stop the LOTR films, for the lawsuit. I was his substitute victim. After his lawyers insisted, over and over, that he wasn’t responsible but they were. I came to agree with them. I no longer made that charge, but the media kept repeating that claim. Reporters contacted me just to get a brief quote. They didn’t bother to query me about whether I still believed what I’d said months earlier. They’d just Google and quote. Then and now were all blurred together. Lazy, sloppy—in a word modern journalism. Google also further enables on of journalism’s chief sins, having a ‘story’ in advance and looking only for confirmation.

    Google Books will do much the same. It’ll encourage a lot of quick, search-and-grab pseudo-scholarship. The courts don’t mind that because, as I saw during my legal dispute, a lot of law is much the same, search for quotes from court decisions and use it grossly out of context. Legal scholarship is already as bad as other scholarship is likely to become. If either is the future, then the future is bad.

  2. @Michael: Thanks for your perspective. Despite Google Books’ imperfections, Joe made a good case with the FDR example, at least. Google rewarded merit or at least popularity with discoverability. I take it for granted things can be improved. But from a research perspective I’m tickled Google Books exists. As for reporters or others cherrypicking results or not following through, that’s a journalistic problem more than a Google Books problem. Of course, a better solution than Google Books, etc., would be a well-stocked national digital library system with the ultimate in fulltext searching and provisions for proper compensation of content providers from the system or users if people wanted more than fair use (and I don’t just mean links to e-books or p-books for sale). David

  3. Actually, according to that appeals court, claims that this is fair use can and do wash, as the appeals court has declared that it is, so it’s now precedent—the law of the land. The only way it can lose that fair use status would be for the Supreme Court to reverse it. And even if SCOTUS does agree to consider the matter, there’s only a 50-50 chance of that.

    If the Supreme Court decides not to take the case, it remains fully enshrined in precedent for at least one circuit, which while not binding on other circuits will at the least be carefully considered. The only way it would get knocked out, if that becomes the case, would be for another circuit to disagree on some future case and SCOTUS have to iron out the disagreement then.

    The funny thing is that few people complain about an even bigger “copyright violation” Google has committed effectively ever since it was founded, and other search engines do, too—it’s constantly copying every page on the Internet, in its entirety, to multiple servers, so at any given time it has at least half a dozen complete copies of the whole Internet. If Google Books is an egregious copyright violation, then so is that practice, and every Internet search engine that exists is also illegal. Because how would Google go about getting explicit opt-in permission from the operator of every site on the Internet to index it? Wouldn’t happen.

  4. Google could get opt-in permission very simply: the robots.txt file that it already examines on every web site. At the moment, robots.txt is opt-out, but it’d be simple enough to make it opt-in using the non-standard but widely used “allow” directive.

  5. It’s funny how my original comment critical of this editorial seems to have been eaten, so let’s try again.

    This author of this editorial does not understand that there are two Google Books projects, the Library Project and the Partner Program. The Partner Program, which displays whole pages, is authorized by the rights holder, the results displayed are using a copy of the book provided by the rights holder, and was never part of the fair use lawsuit. Only the Library Project, which uses scans of books borrowed from libraries, and only displays an approximate 3 line snippet of a page, was being contested. The example used by Joe Wikert is from the Partner Program, and the rights holder presumably made it available for the purpose of “discoverability”. You can tell that this search result is from the Partner Program, because the link to it in the search results says “Preview”. If it had been a result from the Library Project, the link would either say “Full View” if it is in the public domain, or “Snippet View” if it is not in the public domain (using Google’s simplistic determination based on apparent publication date).

    I can’t speak to the actual motivations of the plaintiffs, but as Mr. Perry points out, since most of the books in the Library Project are out of print, “discoverability” is actually a detriment to authors in print. I’ve never figured out whether the Library Project would have been acceptable to the authors if Google actually owned all the books they scanned, but the primary objection appears to be that Google is scanning their works without paying the authors whatever amount the authors think would be appropriate to be included in the Google Books search. I don’t know how much revenue Google gets from the “Get the print book” links on the results page, but the authors want a share of it.

  6. @Bruce: Your yourself talk about the library program’s reproduction of just three-line snippets for books not in the public domain. Fair enough to me. I can see your point about authorization from publishers partners since that would mean authorized use rather than fair use. Just the same, the library program itself is very much within the spirit and letter of the law, as I see it as a nonlawyer. If the books are out of print but still within copyright, the discoverability might create demand to the advantage of the author.

    As for your original comment being eaten, I’m sorry about that. It’s our overzealous antispam dobermans. Funny. Just within the past two days or so, I was having a similar problem with a local newspaper to which I was offering comments online. So I empathize. I contacted the paper and the comments did appear.

    It’s easy to let us know if there are problems. Try the address. If that doesn’t work, there is also my public address of as well as my public phone number of 703-370-6540.


  7. Even if the book Wilkert used as an example had been one of the snippet-only books, it still would have come up as having Mr. Crowninshield in it. It just would have shown a lot less of the text around him. Either way, the searcher would know what book it is in order to be able to acquire it by library checkout or purchase.

  8. The Google Books snippet view is a funny thing. Sometimes, the font is small, like in a footnote, and you’ll actually see 5-6 lines, other times you’ll get the top or bottom of a page or chapter, and you might barely see half a line, and none of your search text. While it tends to improve one’s ability to find relevant books, results vary. I do believe that the district and appellate courts correctly decided this was fair use.

    I did not elaborate why Wilkert’s example is bad, but since you are defending it, let me explain what is wrong with it. First, some authors, especially non-fiction authors have a very real concern that consumers of Google Book search may only need a few pages of their book, and if the snippets are too large, then there’s no reason for the searcher to actually buy their book. When Wilkert conflates the two programs, it allows authors to erroneously give the impression that the library project is giving out too much information to be considered fair use. Second, his example of multiple page search results gives the wrong expectation to people unfamiliar with Google Book search. Third, Google’s original goal was to provide much larger multi-page snippets for the orphan works in the Library Project (up to 20% IIRC), they dropped that after a lawsuit in which Mr. Perry was one of the litigants. The use of the results of the Partner Program could confuse readers aware of the earlier plans and give the impression that their attempted settlement over orphan works with the Author’s Guild became fair use.

    Finally, Wilkert urges the publishers to drop their opposition to the fair use decision, and take advantage of Google’s search engine to promote “discoverability” of their assets, when in reality, most publishers already do, in the Partner Program that has been around for 9 years.

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