March 7, 2007  ·  Lessig

Tom Rubin is a very smart man. I don’t think I’ve disagreed with any copyright opinion of his, until now. The crucial passage (in my view) from his recent speech before the American Publishers, piling on to Google, was as follows:

Rather than delve into this arcane legal issue, what we really should be asking is whether it would be possible for Google to provide its Book Search service in a way that respects copyright. The answer to this question is: of course there is. How am I so sure? Well, because we at Microsoft are doing it. And not just Microsoft. We and others are working on search-driven projects that are proceeding with the express permission and support of copyright owners. And then there’s Google’s own Publisher Partner program, which makes book content available online only after obtaining the necessary authorization.

Let’s first put this quote in some context.

Google’s “Book Search service” aims to provide access to three kinds of published works: (1) works in the public domain, (2) works in copyright and in print, and (3) works in copyright but no longer in print. As some of you may recall from the presentation I made a while ago, about 16% of books are in category (1); 9% of books are in category (2), and 75% of books are in category (3).

With respect to categories (1) and (2), Google is “respect[ing] copyright” just as “we at Microsoft are doing it.” With respect to category (1), that “respect” means no permission needed. With respect to (2), that means deals with the publishers whose works are made available — deals which give enhanced access over the default “snippet access.”

So that leaves category (3) — the 75% of works presumptively under copyright, but no longer in print. How do you “respect” copyright with respect to those works?

Well, Microsoft “respects” these copyright holders by not providing any access to their works. Google “respects” these copyright holders by providing “snippet access” — just enough to see a sentence or two around the words you’re searching for, and then links to actually get the book (either at a library, or from a book seller).

This may just be my own vanity, but I suspect that more copyright holders of books no longer in print would like Google’s kind of respect over Microsoft’s. But in any case, it is not true to say that Google could have provided “its Book Search service” in the way that “we at Microsoft are doing it.” If asking first is always required, then because of the insanely inefficient system of property that we call copyright — inefficient again because the government has designed it so that there’s no simple way to know who owns what, the very essence of a property system — 75% of books could not be within a digital view of our past.

  • Luis

    Did you mean to say (3) ‘works in copyright but out of print’? or (3) ‘works in copyright but no longer available’ instead of ‘(3) works in copyright but no longer out of print.’?

  • Mike

    Again, the doctrine of hostile possession remedies the situation (land being wasted) for real property. Could /is what goggle is doing (or could do) be considered “open and notorious”?

  • Lessig

    Luis: Corrected. Thanks.

  • Adam

    This figure of 75% of books are (no longer) in print but are still in copyright is suspect. I agree with much of what you say. But that is an unreliable statistic. See a very knowledgeable posting here:

    BTW – by the same reasoning the Public Domain figure you give is also probably understated. That is a win for everybody!

  • three blind mice

    Well, Microsoft “respects” these copyright holders by not providing any access to their works. Google “respects” these copyright holders by providing “snippet access” — just enough to see a sentence or two around the words you’re searching for, and then links to actually get the book (either at a library, or from a book seller).

    there is, of course, another way of looking at this. if we may paraphrase the professor’s comments:

    well, microsoft respects these copyright holders – and indeed all copyright holders – by not making copies of copyrighted works without permission. period.

    google shows no respect whatsoever for copyright holders by making complete copies of these works, making the complete text of this copy searchable, and then displaying a “snippet” of the work alongside paid advertising that supports google’s bottom line. (those “links” ain’t free professor.)

    google is appropriating the works of others without permission for its own pecuniary interests. google is not providing a public service. on the contrary, google is a “for profit” business – just like microsoft.

    the difference is that google’s (copyright infringing) business model is becoming malignant to its growth. microsoft, by playing by the rules of copyright instead of ignoring/circumventing/overturning copyright, is taking the responsible route for business growth.

    serious investors would be wise to recognize thís difference.

  • ACS

    Ummm – I thought the real problem with Google book search was that it’s search engine checked digital copies of works that are reproduced without authorisation. Surely the mere presentation of a snippet (Negotiated down from an entire passage mind you) is protected under the US Fair Use provisions (Or the Fair Dealing provisions in Australia and the UK). I would have thought that neither Google nor Microsoft are complying strictly with copyright law unless they obtain authorisation to use works for the purpose of a search engine.

    That is, however, a strictly legalistic view and maybe we should consider the wider policy of allowing the use of technology to access knowledge albeit subject to copyright protection.

  • Kate

    This is an excellent example of the balance we need in copyright, and how we don’t have it. It the issue of whether information wants to be free, accessable or inaccessable.

    I love what Google is doing by linking to book-resellers and libraries. I think that’s an excellent solution to the problem, and what is wrong with it? The information is accessable, but not necessarily free and it allows the distribution of knowledge.

  • pb

    The problem, Kate, is that Google is putting its gun against the publishing industry’s head, by digitizing each entire book without permission.

    When it has all the books in the world, Google can then pull the trigger.

    Google then becomes the publishing industry, and won’t be obliged to share a cent. The good Professor will then come along and tell them to be grateful for the traffic Google sends their way – just as he does today.

    Microsoft doesn’t pose this threat, because it is co-operating with rights holders, and scanning selectively. Microsoft doesn’t need the whole pie.

    Do you see the difference?

  • Joe


    “Microsoft doesn’t pose this threat … Microsoft doesn’t need the whole pie.”


    You are either:

    a) 13 years old,
    b) gullible, or
    c) stupid.

    (Could be all three, too, I suppose — or maybe “d) being paid by MS or one of its shill firms to type obviously-idiotic glowing comments about the company into blogs.” Comments that completely ignore that company’s past behavior and try to cast its competitors in the light of its own sins, I might add.)

    Complaining about the risk of Google trampling and taking its partners share of the pie, and hoping for salvation from Microsoft indicates a seriously-flawed error in judgment.

  • Joe

    @Three Blind Mice:

    “playing by the rules of copyright … is taking the responsible route for business growth.

    serious investors would be wise to recognize thís difference. “

    YEAH! Think about that poor broke fsckers that invested in the last round of traditional copyright ignorers — like the ones that invested in Sony in the early 80′s! Or those dipsticks that bought Xerox in the 60′s and 70′s! Or the penniless fools that invested in the first phonographic record players and player pianos and radio broadcasters and cable networks and gutenberg-press-makers!

    Those poor bastards should have been executed for violating copyright that way, and the people that invested in those doomed technologies that would’ve destroyed the publishing and music and video businesses, if we’d let them continue, got the bankruptcy they DESERVED!!!

    What’s that? …

    The DEVIL, you say!


    P.S. — Congratulations, Professor, you now must OFFICIALLY be considered a threat to MS’s hegemony — I’ll bet you feel honored to have TWO paid employees of Microsoft watching so closely and posting here!

  • Una Smith

    Larry, akin to the issue of whether showing a snippet of text from a book plus an ad is or is not in the interests of the book’s copyright holder, I have always had a problem with another of Google’s envelope pushing practices. Namely, appropriating Usenet content, which Google acquired from Deja News. That has been borderline acceptable to the Usenet community because we liked Google’s archive function. But now with its new design of its Google Groups user interface, Google is pushing its own discussion groups and discouraging its own users from posting to Usenet. Google was a huge user (customer) of Usenet, and now is a competitor. Shades of Peter Drucker.

    By the way, was Spring 2005 (at Yale) the first time you taught “The Law of Cyberspace”? Or just the first time you taught it in a lecture / team project format? Are you still using that format?

  • George Laughead

    How soon we forget the start of it, non-commercial, lots of volunteers, out-of-copyright or with permission. And all still on-line — but never millions of books…just important ones.

    The first, pre-internet:
    Project Gutenberg
    Michael Hart 1971

    The first full text on-line library (University of Kansas based, LYNX telnet when started), all volunteer:
    CARRIE Books
    that became
    KanColl Kansas Collection
    Dr. Lynn H. Nelson 1993

    The first web directory of on-line books:
    On-Line Books
    John Mark Ockerbloom 1993

    Lawrence, sorry about the spam on your site, by the way.
    George WWW-VL: W3 Web Ethics

  • Jim Carlile

    I’m really amazed to find that so many people fail to see the huge distinction between “stealing” and infringement. The latter does not involve depriving someone of the use of their property, but the popular notion that it’s the same thing has infested most serious discussions of the issue, even here.

    That’s sad, but I guess it’s symptomatic of our present culture, where everything is seen in unexamined terms of property and individual gain. It’s going to be quite a tough nut to crack, when concepts like “fair use” just seem a cheat to most people.