seeking information Google claims is relevant to its defense against two lawsuits concerning the legality of its plans for developing an electronic library of literary works, attorneys for Yahoo argue that their client is not actually developing a competing project.
Instead, the legal brief claims Yahoo is merely financially backing a project in which plaintiffs in the case against Google are involved, and does not exercise any authority over that project. Though the brief does not state so explicitly, language scattered throughout also implies that Yahoo is not necessarily the online host of this project.
"Yahoo has not launched an independent book scanning project or a 'Yahoo Book Project' as defined by Google in the Subpoena," the response reads. "Instead, along with over 40 other entities, including public libraries, major colleges and universities and leading Fortune 500 companies, Yahoo has backed a non-profit alliance run by the Open Content Alliance (OCA) and Internet Archive to digitize books and make them searchable through any web search engine. Yahoo supports the approach adopted by the OCA which digitizes only text in the public domain or where copyright holders have expressly given permission for such works to be included, and Yahoo exercises no direction and control over the OCA's operation of its project."
Yahoo's position contradicts its announcement from early October, which appeared to place it in a leadership position on the OCA project.
Two lawsuits -- one from authors, another from publishers -- challenge Google's rights to digitize the content of books of its choice, while only giving publishers the option of "opting out" of Google's list, so long as it provides Google with a written explanation.
"If you're not a Google Books partner and want us to avoid your books," reads Google's FAQ to publishers, "you'll need to provide us with a small amount of information about yourself as well as a list of the books you don't want in Google Book Search. Unless you specify otherwise, we'll use your information only to verify that you are indeed the owner of that particular book."
The Authors' Guild, representing more than 8,000 individual authors and a vocal supporter of the OCA project, filed the initial class action. Its suit claims that, when Google claimed it obtained the rights to digitally reproduce the contents of the University of Michigan library, and was seeking similar rights with regard to four other college libraries, it did so without regard to the rights of the copyright holders of the books in question.
The Guild lawsuit's implications are first, that no library has the right to enable what would be, in effect, the republication of material that happens to be in its holdings; and second, that no company has the right to develop a commercial service around others' copyrighted works, without their permission or without regard to their right to be involved.
Google's original agreement with the University of Michigan states that Google Library's search process for digitized content was to remain free to the public, with special access made available under the U of M brand. But the two sides left open the right to negotiate a "distribution fee" for the delivery of found content - essentially whatever Google had planned to charge anyway, or whatever reasonable fee the two parties could come up with later. The agreement goes on to note that neither party has the right to act as a licensing agent for copyrighted content. When one party discovers, for instance, that a work thought to be in the public domain actually isn't, it would notify the other in due course. What actions that party would then take, aren't specified.
So the picture the original agreement tries to draw, in this case, is of a college library simply making its holdings more accessible by means of someone else volunteering to serve as its "digital bookmobile."
The Authors' Guild's original complaint is worded very simply, and to the point: "The Named Plaintiffs and the Class own a valid copyright in and to at least one Work that has been copied by Google. They, not Google, have the exclusive rights to, among other things, reproduce their Works, distribute copies of their Works to the public, display their Works, and to authorize such reproduction, distribution, and display of their Works."
The Authors' Guild, in this case, represents authors and not publishers, who argue in a separate complaint that copyright applies to them when they make publication deals with those authors. The plaintiffs in the subsequent suit against Google are The McGraw-Hill Companies (which operates the Osborne/McGraw-Hill imprint), Pearson Education (which runs the Addison-Wesley, SAMS, and Que imprints, among others), Pearson Group USA (the Penguin imprint), Simon & Schuster (the US' largest), and John Wiley & Sons (which runs Dummies Press).
"The Publishers support making books available in digital form so that those books can be, among other things, researched through electronic means," reads the publishers' complaint. "One such means involves the recently announced Open Content Alliance, involving a cooperative effort among publishers, libraries and Yahoo. Unlike the Google Library Project, OCA will make books accessible to any search engine (including Google's). Also, unlike the Google Library Project, entire works will be made available with the permission of copyright holders in ways that protect their rights.
"The Google Library Project, however, completely ignores those rights in favor of Google's own economic self-interest," the publishers' complaint continues, going on to draw a picture of how it qualifies as a commercial endeavor, by increasing traffic to Google and enabling it to charge advertisers more for all of the pages it serves.
For Google's part, it maintains that its reproduction of materials is basically an extension of the "fair use" provision of existing copyright law.
"The use we make of all the books we scan through the Library Project," reads Google's public response to the initial complaint, "is fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself, which allow everything from parodies to excerpts in book reviews." In other words, if you can cite a part of a book in an excerpt or by way of making fun of it, you should be able to show a picture of half a paragraph of it on a search site. What's more, Google argues, such citations will make otherwise obscure works more visible to the general public, and perhaps more desirable as a result.
Google's subpoenas, on their face, appear to be scrambling for proof that it's being singled out as "evil" by authors and publishers, when other search providers are working on similar projects. But since The Authors' Guild has gone on record as supporting the OCA project, Google may also be trying to establish that the Guild is acting on Yahoo's behalf, using the courts as a way to combat the search leader instead of the marketplace.
One part of Yahoo's response to Google's subpoena suggests that some of the answers it seeks are actually attainable online. "Google is asking for information relating to the Open Content Alliance...most of that information can be obtained on the Open Content Alliance website at http://www.opencontentalliance.org," the Yahoo response reads. "Yahoo objects to Google's Subpoena to the extent that it appears to seek documents that are not in Yahoo's control. To the extent that Google requests documents regarding the Open Content Alliance website, Google's Subpoena would require Yahoo to review documents not in its control to determine which documents are responsive to the document requests."
Yet if Google were to, say, use Google to search for its answers online, as Yahoo suggests, some of what it might find might appear contrary to Yahoo's own assertions, including this excerpt from an Authors' Guild e-mail to its own members, announcing the OCA endeavor as "a book-scanning project that would make digitized texts searchable through Yahoo.
Yahoo's coalition took care to state that only works for which it has the rightsholders' permission or are in the public domain would be included...Yahoo's new venture is further demonstration that the right to store books in digital form is commercially valuable, a right that should be licensed rather than appropriated."
But Yahoo's response indicates not only is the OCA not really "Yahoo's new venture," it might not have even had the idea to create such a venture - and even if it did, says the response, what business is that of Google's, anyway?
"Even if Yahoo were not a chief competitor," the Yahoo response argues, "Google would have no business inquiring about 'ideas' that Yahoo employees may have had, or about 'user restrictions' or 'access controls' that Yahoo has 'considered using.' The mental thought processes of Yahoo employees go to the heart of Yahoo's proprietary trade secrets."
Thus the Authors' Guild -- the plaintiff in the first complaint -- is not characterizing the OCA as "not in Yahoo's control," but instead as "Yahoo's new venture." Sure, Yahoo is entitled to its trade secrets just like Amazon - another recipient of a Google subpoena - claims the response, but in this case, Yahoo wouldn't have any relevant trade secrets to divulge, anyway. Meanwhile, Yahoo's assertions in its own defense actually run contrary to those of the plaintiffs in the second suit, who appeared to be trying to defend Yahoo's role as an OCA leader.
So if Google were to take Yahoo's suggestion, what it turns up could conceivably put a twist in the entire online library debacle, perhaps casting some doubt as to Yahoo's motives. To avoid casting suspicion on itself and maintain the appearance of non-involvement, the OCA's leading proponent may have to lay low and stay quiet - which would be to Google's benefit after all.
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