Open Access News

Google is subpoenaing documents from its two biggest competitors, Microsoft and Yahoo, in an effort to defend itself in copyright lawsuits filed against it by publishers and authors....

The [plaintiff] publishers support a separate book-scanning effort, known as the Open Content Alliance, that was conceived by Yahoo and the non-profit Internet Archive, and that seeks explicit permission from copyright holders. The alliance has promised to make books available to all search engines.  Microsoft joined the alliance last year and has said it will launch its own book project similar to Google's.

According to filings in U.S. District Court in New York, Google wants Yahoo and Microsoft to provide descriptions of their projects, as well as documents that show they have legal rights to the books that are included in the project....

Google also said it would subpoena documents from Amazon, Random House and the Association of American Publishers. In a statement, Google said that confidential documents it is requesting would be filed under a protective order that would tightly restrict who could see them.

Still, Google's requests may be hard to fulfill. According to librarians participating in Google's project, the legal status of some older books can be hard to determine....

In an interview with the Mercury News last year, Brewster Kahle, the founder of the Internet Archive, said he was concerned how accessible a digital library run by Google would be.  "Is the library of the future going to be open?'' Kahle said. "Or will it be controlled by a couple of big corporate players?''

Comment. This is interesting for several reasons.  First, it suggests that settlement talks have broken down.  Second, it suggests that Google thinks there might be some advantage in showing that the permission-seekers at the OCA don't always have the permissions they claim.  Of course the virtues or vices of a third party wouldn't normally be relevant.  But Google's strategy might be to show that the plaintiff publishers are voluntarily cooperating with practices substantially similar to its own.  Third, even if Google can show lapses at OCA, with publisher acquiescence, I doubt that that will suffice; or if it suffices for these plaintiffs, it won't for the next ones.  The publishers may need clean hands, but Google will eventually have to show fair use --and BTW I think it can.  However, if it can prove fair use, then it can leave the OCA out of it.  Fourth, the OCA has invited Google to join the organization, and as far as I know Google still hasn't made up its mind.  These subpoenas, and the implicit intent to smear the OCA for a small tactical advantage, may fracture whatever cordiality there was in their relationship and make future Google membership even less likely.

I'd like to see Google avoid two kinds of mud here.  First, the OCA is a first-rate organization that shouldn't be muddied by someone else's fight.  Second, Google has a strong case and I want to see it prove fair use, cleanly and decisively, without muddying the issue.