Very interesting article by Jeffrey Toobin in the law section of this week’s New Yorker, “Google’s Moon Shot.”

The article is about Google Books — Google’s plan to digitize every book possible.

How many books are there to scan? Worldcat catalogs at least 32 million books across 25,000 libraries. (That’s a lot pages to turn by hand, which is how Google is doing it.) The “moon shot” title refers to a quote from Marissa Mayer, who, reflecting on the project, suggested, “We think we can do it all inside of ten years. It’s mind-boggling to me, how close it is. I think of Google Books as our moon shot.”

Several publishers, including Simon & Schuster, Penguin Group, and McGraw Hill are suing Google to stop the project. What is interesting is that all these publishers are also partners in project.

Toobin sums it up nicely: “They [the publishers] are for Google Book Search at the same time that they are against it.”

The publishers are for the project because full-text search will clearly help them sell more books, and because they themselves are unable to attempt such a project of such staggering scale. The publishers are simultaneously against the project because they feel full-text scanning of books violates copyright law.

Google argues, no, because they only present 20 or so words in response to a search query, and because their technology is “transformative” (that is, the search process itself is fundamentally a novel product), that there’s no copyright issue.

Quoting both sides, Toobin suggests the dispute will be settled with licensing fees out of court:

“The suits that have been filed are a business negotiation that happens to be going on in the courts. We think of it as a business negotiation that has a large legal-system component to it” — Marissa Mayer, Google

“This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal” — Pat Schroeder, president of the Association of American Publishers

And the most important angle to all this: such a licensing arrangement will create a formidable barrier to later entrants in book search. According to Lawrence Lessig:

“If Google says to the publishers, ‘We’ll pay,’ that means that everyone else who wants to get into this business will have to say, ‘We’ll pay,’ The publishers will get more than the law entitles them to, because Google needs to get this case behind it. And the settlement will create a huge barrier for any new entrants in this field.” — Lawrence Lessig

And Tim Wu of Columbia Law School:

“Google didn’t get video search right—YouTube did, Google didn’t get blog search right—technorati.com did. So maybe Google won’t get book search right. But if they settle the case with the publishers and create huge barriers to newcomers in the market there won’t be any competition. That’s the greatest danger here.” — Tim Wu

The settlement-as-barrier-to-entry angle is worth watching on this.