The American Association of University Presses has some serious reservations about Google's Digital Library plan, announced last December, to digitize 15 million books contained in various university libraries, without consultation with the publishers. The story played big last week in sources as diverse as C|Net News, the Register, and the Harvard Crimson.

To begin with, the project appears to violate copyright law. As AAUP puts it, using a favorite lawyers' device of the rhetorical question:

Under U.S. law, a fair use determination requires an analysis of the four factors specified in Section 107, and is highly fact- and circumstances specific. What is your argument to justify treating books of haiku, dictionaries, novels, collections of letters, engineering handbooks, biographies, musical scores, works of literary criticism -- in short, every copyrighted work in a library's collection -- as identical so that they can fall under the same four factors analysis?

However, the Google lawyers will have an answer: libraries bought the works and they are simply shifting the format of the content, rather akin to the time-shifting endorsed as fair use by the Supreme Court in the Betamax case, or to the practice -- legitimized in cultural custom if not yet in formal law -- of downloading purchased CDs onto a personal computer. So nyah, nyah to you, AAUP! See you in court, and we have $billions and you don't.

So one should ask the deeper question, what should the law be and why?

On this, the AAUP appears to be defending difficult ground, as it acknowledges when it says: "The idea . . . that anyone with a computer and internet access will be able to use Google to search the collections of these libraries . . . is enormously seductive."

It is indeed, and the opposite, the idea that access to the Bodleian Library should be limited to those who travel to Oxford, is insane. On this level, the AAUP is subject to the same baiting attack leveled against the music industry: that is defending an obsolete business model of putting bits on plastic, or paper, and transporting them around the country by truck, or of forcing users to transport themselves by airplane. In the digital age, this is too inefficient to be countenanced.

Actually, though, this is not what the AAUP wants in the long term, anymore than it represents a fair statement of the music industry's position. The publishers are working to develop the market for digitized versions of their works, sold for money and copy protected to ensure that each user pays its fair share. Their real concern is that the Google versions will be pirated and napsterized, which would destroy the market, with all its promise for an explosion in the production of future knowledge.

This concern is especially acute because libraries as institutions seem to be philosophically opposed to protecting intellectual property. According to the Crimson:

Notwithstanding the criticism, [Harvard University Libraries] Director Sidney Verba '53 says the project has generally been well-received and will continue as planned. . . . "Overall, there has been more positive reaction than negative," he said. "Copyright laws are written for companies like Time Warner and Disney instead of research libraries like Harvard. [These laws] are not aimed at us."

Google is in the business of collecting eyeballs that it can then sell to advertisers, a business model that inclines it toward "information wants to be free." Content that is protected by DRM is not going to be fodder for Google searches.

So, for the sake of the future, the AAUP needs to win. But I confess to some personal amusement at this example of the universities eating at their own vitals. As an AAUP paper puts it:

The academics and librarians I know are smart, interesting, delightful people, but they do have some peculiar ideas about copyright. To hear them tell it, copyright is a law invented by publishers solely to serve their own financial interests, a personal use exemption to copyright law exists for the convenience of scholars, and any educational use of copyrighted material is, by definition, a fair use. And the most pernicious of all: Copyright and intellectual freedom are fundamentally opposed, locked, like good and evil, in a Manichaean struggle for the soul of the university.

In the end, of course, that great leveller the Internet will disintermediate the libraries, too. The ultimate irony is that they, not the publishers, are the ones who trying to defend an obsolete business model.