Why Publishers Should Embrace the Evolution of “Fair Use”

When I meet with publishers I always ask them about the biggest problems they face in today’s market. One of the most popular answers is “discoverability.” Most publishers fret about getting lost in a sea of other books and promotional campaigns.

Life seemed much easier in the brick-and-mortar days. A publisher simply paid a retailer for premium placement, resulting in endcap promotions and books stacked in high-traffic areas of the store. Those options still exist, of course, but they’re less important now that one retailer dominates distribution and discovery.

That’s why I’m scratching my head about all the negative publisher and author reaction to the recent federal appeals court ruling on Google Books. If you’re not familiar with Google Books, it’s an extension of the search engine enabling discovery and sampling of digitized books. Many of those books are still protected by copyright, hence the delicate nature of the case.

If you’ve never explored Google Books you need to take a closer look before forming an opinion on the ruling. Here’s a quick search for “FDR” on Google Books. The first book link points to my favorite FDR biography, by Jean Edward Smith. Click that link and the first thing you’ll see is a frame with scanned pages from the book. Scroll down a bit and the following note is displayed:

This is a preview. The total pages displayed will be limited.

Every so often you’ll see more notes like this one:

Pages 2 to 9 are not shown in this preview.

In other words, what you’re seeing are merely snippets of the book. There’s no way you can read the entire work inside Google Books. What you can do, however, is search and discover more book content than you’ve ever been able to before.

For example, on page 10 of the FDR book I noticed the phrase “Richard Crowninshield of Boston.” Let’s say you’re a researcher working on a project about Mr. Crowninshield. A colleague said they read something about him in a book but they don’t recall which one. You need that source because you want to buy the book to understand the context and your research requires more than just a page or two where the reference was made.

I challenge you to find the book by searching that phrase on Amazon. I just did that and here are the search results. Smith’s book is nowhere to be found.

Now search the same phrase in Google Books and here’s what you get. One click takes me directly to that page and the left side of the screen tells me Smith’s book is what I need. Notice that Google also includes links to buy the book as well, in print or ebook format.

Publishers, wake up and realize that the largest search engine on the planet offers a powerful way for your content to be discovered and purchased. Rather than getting all litigious about this, why not embrace it and find a way to fully leverage it?

The simple truth is that as technology evolves, the notion of “fair use” is also evolving. I think this is a very good thing, and not just for Google. History is littered with marketplace incumbents who crashed and burned as they tried to protect yesterday’s model. Tomorrow’s publishing leaders will be the ones who take advantage of services like Google Books, not those trying to make it go away in a courtroom.