Prying Open Google’s Closed Books

Everyone knows Google has scanned tens of millions of books, including over 3 million books in the public domain, and that it got most of these books from many different libraries, public and private.

What most don’t know is that Google forces those libraries to use technology to restrict Internet access to those digital copies, even the public domain books that are no longer copyrighted.

Under Google’s contracts, those libraries must deploy “technological measures” to prevent other libraries, digital archives, researchers, competing search engines, and others from downloading and analyzing the content of those public domain books.  That’s wrong.  Public domain books should always be accessible by the public, and not locked up by Google’s technology.

What are “technological measures” or TPMs?  Think DRM, encryption, and other access controls typically used to protect copyrighted music and movies from piracy.  TPMs like the ones Google requires are backed up by the force of law, specifically Section 1201 of the Digital Millennium Copyright Act.  That law imposes civil and criminal penalties on anyone who tries to circumvent or disable TPMs without permission of the copyright owner.  We believe strongly that this law should never be used by Google to threaten civil and criminal liability on users of digital public domain books, particularly where such threats could cause substantial harm to competition.

Fortunately, every three years the United States Copyright Office examines how TPMs are used to see if they are inhibiting the legitimate, non-infringing use of creative works.  Today we filed comments asking the Copyright Office to make clear that Google cannot invoke the law against users of public domain books.  We’ve seen Google take many tortured public policy positions throughout the GBS saga, but it is still shocking to watch the company that promotes everything “open” resort to a scheme to keep public domain books “closed.”