Publishers: Kelly‘s OK, Google Book Search is not

I just finished reading the complaint (PDF) by the publishers in their suit against Google. Two things struck me. The first is that they are not asking for damages; only injunctive relief. If Google was found liable of willful infringement, it would be on the hook for up to $150,000 per book scanned. The Author’s Guild suit, on the other hand, does ask for damages, which has caused much consternation. The second interesting thing is that rather than challenging Kelly v. Arriba-Soft, the publishers are merely trying to distinguish it. Here’s what they say:

Google analogizes the Google Library Project’s scanning of entire books to its reproduction of the content of websites for search purposes. This comparison fails. On the Internet, website owners have allowed their sites to be searchable via a Google (or other) search engine by not adopting one or more technological measures. That is not true of printed books found in library shelves. Moreover, books in libraries can be researched in a variety of ways without unauthorized copying. There is, therefore, no “need,” as Google would have it, to scan copyrighted books.

So what do these things mean? Is it just magnanimity on their part of the publishers? It could be that while the authors and their lawyers are just acting like one would expect a class in a class action suit to act (maximize damages), the publishers want to continue to work with Google on (what used to be called) Google Print Publisher, so they don’t want to destroy Google. On the Kelly point, I think this signals that the publishers understand that a court would have to be unbelievably shortsighted not to see the wisdom of Kelly, e.g. that a fantastically valuable set of services (search engines for starters) would be destroyed if they were saddled with the impossible transactions costs of having to ask permission of each site indexed. Maybe the publishers have figured out that their best course is to show that books are different. Of course, they’re not.

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