Yahoo Claims it Isn't Building an Online Library

For Google's part, it maintains that its reproduction of materials is basically an extension of the "fair use" provision of existing copyright law.

"The use we make of all the books we scan through the Library Project," reads Google's public response to the initial complaint, "is fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself, which allow everything from parodies to excerpts in book reviews." In other words, if you can cite a part of a book in an excerpt or by way of making fun of it, you should be able to show a picture of half a paragraph of it on a search site. What's more, Google argues, such citations will make otherwise obscure works more visible to the general public, and perhaps more desirable as a result.

Google's subpoenas, on their face, appear to be scrambling for proof that it's being singled out as "evil" by authors and publishers, when other search providers are working on similar projects. But since The Authors' Guild has gone on record as supporting the OCA project, Google may also be trying to establish that the Guild is acting on Yahoo's behalf, using the courts as a way to combat the search leader instead of the marketplace.

One part of Yahoo's response to Google's subpoena suggests that some of the answers it seeks are actually attainable online. "Google is asking for information relating to the Open Content Alliance...most of that information can be obtained on the Open Content Alliance website at http://www.opencontentalliance.org," the Yahoo response reads. "Yahoo objects to Google's Subpoena to the extent that it appears to seek documents that are not in Yahoo's control. To the extent that Google requests documents regarding the Open Content Alliance website, Google's Subpoena would require Yahoo to review documents not in its control to determine which documents are responsive to the document requests."

Yet if Google were to, say, use Google to search for its answers online, as Yahoo suggests, some of what it might find might appear contrary to Yahoo's own assertions, including this excerpt from an Authors' Guild e-mail to its own members, announcing the OCA endeavor as "a book-scanning project that would make digitized texts searchable through Yahoo.

Yahoo's coalition took care to state that only works for which it has the rightsholders' permission or are in the public domain would be included...Yahoo's new venture is further demonstration that the right to store books in digital form is commercially valuable, a right that should be licensed rather than appropriated."

But Yahoo's response indicates not only is the OCA not really "Yahoo's new venture," it might not have even had the idea to create such a venture - and even if it did, says the response, what business is that of Google's, anyway?

"Even if Yahoo were not a chief competitor," the Yahoo response argues, "Google would have no business inquiring about 'ideas' that Yahoo employees may have had, or about 'user restrictions' or 'access controls' that Yahoo has 'considered using.' The mental thought processes of Yahoo employees go to the heart of Yahoo's proprietary trade secrets."

Thus the Authors' Guild -- the plaintiff in the first complaint -- is not characterizing the OCA as "not in Yahoo's control," but instead as "Yahoo's new venture." Sure, Yahoo is entitled to its trade secrets just like Amazon - another recipient of a Google subpoena - claims the response, but in this case, Yahoo wouldn't have any relevant trade secrets to divulge, anyway. Meanwhile, Yahoo's assertions in its own defense actually run contrary to those of the plaintiffs in the second suit, who appeared to be trying to defend Yahoo's role as an OCA leader.

So if Google were to take Yahoo's suggestion, what it turns up could conceivably put a twist in the entire online library debacle, perhaps casting some doubt as to Yahoo's motives. To avoid casting suspicion on itself and maintain the appearance of non-involvement, the OCA's leading proponent may have to lay low and stay quiet - which would be to Google's benefit after all.