BOB GARFIELD: Late last year, Google announced its intention to digitize millions of books from the collections of five major libraries in the U.S. and Britain. Last week, the Authors Guild announced its intention to sue the Internet juggernaut for copyright infringement on a grand scale. The plaintiffs say Google must get permission of each and every copyright holder before scanning his or her books. Google maintains that because only small sections of the books will be put online, the so-called Google Print Library Project is actually good for authors in that it will massively increase the visibility of their books. Joining me now to parse the controversy is Siva Vaidhyanathan, who teaches in the Culture and Communications Department at New York University. Siva, welcome to the show.

SIVA VAIDHYANATHAN: Thanks, Bob. It's good to be here.

BOB GARFIELD: Begin, please, by describing how the Google Print program would work as it's currently envisioned.

SIVA VAIDHYANATHAN: As you describe, the Library Project is a massive endeavor done without the express permission of publishers or copyright holders. For public domain books, books published before 1923, books that are definitely beyond copyright, we are going to get full text capability. However, for most of the books published in the 20th century, we are only going to get snippets. We're only going to get a series of pages. You would not be able to read more than three or four at a time. You would not be able to print them out. It would give you a taste of the book. And on the left-hand side of the column you would be given links for places you could buy the book, either online or in real life, and libraries in your area where the book would be available.

BOB GARFIELD: So it would seem to me like this would be a great deal for any author, certainly a way for lesser-known authors to have their books made more visible to the public, which might, you know, buy them with, you know, a mouse click or two.

SIVA VAIDHYANATHAN: I think it's impossible to predict any market effect one way or the other at this point. So I totally understand their anxiety and their motivation. What's interesting about their claim is they think that Google should go back and find the copyright holder in every case of this project and clear the rights. Well, that's frankly impossible. Our copyright system is so poorly laid out that you can't find who owns most books. There's no database. So most of the time, whether you're a historian trying to use photographs in a book or - or you're a publisher trying to republish a long-lost work, there's no way to clear the rights and things don't get done.

BOB GARFIELD: But in the absence of certainty about what kind of market effect it will have, the authors are saying, "The market is irrelevant. We own this work and we have the right to say how it's duplicated, period."

SIVA VAIDHYANATHAN: That's right. And that is the traditional understanding of how copyright works in the real world, in the book world. Now, you know, traditionally in copyright there are limits to the power that a copyright holder has, and among those limits is fair use. Fair use is what secondary users can claim to be able to use elements of copyrighted works or sometimes the entire copyrighted work under certain conditions. And fair use is there to encourage criticism, journalism, parody, scholarship and teaching and other public goods. So fair use works in a certain way in the real world, in the analog world. It works sort of under different principles in the Web world.

BOB GARFIELD: Well, I want to ask you about that, because obviously in this digital age we can hyperlink entire pages of content without any kind of permission. Do the old notions of what constitutes fair use have to change in the digital world?

SIVA VAIDHYANATHAN: Well, they already have, for the basic reason that Google has based its entire business on the fact that it can copy almost the entire Web without any serious copyright implications, because to create an index, it has to make copies. If you don't want someone copying your work online, it's your duty to opt out of the system. There are ways that the New York Times makes sure that its news stories, for instance, don't get copied by Google and then placed in the index. Now, most people producing most webpages opt in or don't opt out, and Google has been free-riding on all of this content around the Web that people have been creating for more than a decade. What Google is now doing is reaching into the real world, into the analog world, into the book world and saying, "All right, now you're going to play by our rules." What you're seeing here is the norms of the real world are clashing with the norms of the Web world.

BOB GARFIELD: As you look at how courts have behaved on questions of fair use, now, what would be your bet as to how this litigation may turn out?

SIVA VAIDHYANATHAN: Well, I'm not confident that Google's rather bold goals are going to satisfy the courts in this country. And if a court comes along and rules against Google in an indelicate way that goes beyond the particular contours of this case, it could rein in a lot of what Google wants to do in the future and maybe even what Google has done so far.

BOB GARFIELD: So if I understand this right, you're actually sympathetic with Google's view of how fair use and copyright law should be understood but you just think that they're rolling the dice and too likely to hit snake-eyes on this one.

SIVA VAIDHYANATHAN: Exactly. I see our copyright system right now as rather absurd and unworkable. And what does work is delicate. It's a delicate ecosystem, and I'm very worried about something so disruptive and so revolutionary really flattening out a lot of the nuances of copyright that have allowed for such amazing creativity in the Web world.

BOB GARFIELD: If not Google now, then who? And when? Who should be in charge of deciding which books get scanned?

SIVA VAIDHYANATHAN: Well, I actually think that this is the job of libraries. I think libraries should be doing this first and foremost. The Library of Congress should have identified this as a major public need and goal and pursued this sort of project years ago. Instead, they've outsourced it to a private corporation, and this corporation, as good as they like to make us think they are, is still operating by keeping us blind. Their technology is proprietary. Their algorithms for search are completely secret. We don't actually know what's going to generate a certain list of search results. They don't work for us.

BOB GARFIELD: You're suggesting this is a war that has to be fought. You just don't want Google to be the one doing the fighting.

SIVA VAIDHYANATHAN: Yeah. It's a sad commentary on our sort of state of information these days that it takes a daring and - for now, anyway - rich company to make these sort of inroads and stand up for a more flexible copyright system when in fact our public institutions should be doing this. But in this day and age, it's not very fashionable to believe that public institutions can actually do anything for us.

BOB GARFIELD: Siva, thanks very much.

SIVA VAIDHYANATHAN: Thank you, Bob.

BOB GARFIELD: Siva Vaidhynathan is author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. [MUSIC UP AND UNDER]

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