Tim Spalding writes about Google Book Search API, cover availability, and terms of service:
Basically, I’ve been told [I can't help but wonder: Told by whom? -JR] that I was wrong to promote the use of GBS for covers in an OPAC, that the covers were licensed from a cover supplier-ten guesses!-and should not have allowed this, and that the new GBS API terms of service put the kibosh on the use I promoted.
The back story is an interesting one. Soon after I wrote and spoke about the covers opportunity, a major cover supplier contacted me. They were mifffed at me, and at Google. Apparently a large percentage of the Google covers were, in fact, licensed to Google by them. They never intended this to be a “back door” to their covers, undermining their core business. It was up to Google to protect their content appropriately, something they did not do. For starters, the GBS API appears to have gone live without any Terms of Service beyond the site-wide ones. The new Terms of Service is, I gather, the fruit of this situation.
Now, I am not surprised. As soon as I heard the Google staff person on the Talis interview implying that Google had no problem with use of cover images in a library catalog application, I knew that something would come through the pipeline to put the kibosh on that. Not least because I too had had backchannel communications with a certain Large Library Vendor, about Amazon, where they revealed (accidentally I think), that they had had words with Amazon about Amazon’s lack of terms of service for their cover image. Even then, I wondered exactly what the legal situation was, in the opinion of this Large Vendor, of Amazon, or of any other interested parties.
More questions than answers
But here’s the thing. When I read GBS’s new Terms of Service looking for something to prevent library catalog cover image use… I don’t see anything. And if there WAS going to be something, what the heck would it even look like anyway?
Amazon tried to put the kibosh on this by having their terms of service say “You can only use our whole API if the primary purpose of your website is to sell books from Amazon.” Making not just cover usage, but really any use of the Amazon API by libraries pretty much a violation. If Google goes _that_ route, it’d be disastrous for us.
But I doubt they would–not even just trying to limit cover image usage by those terms–because, first of all, they intended from the start for this service to be used by libraries, and had development partners from the start that included libraries and library vendors. Secondly, what would the equivelent be for Google? You can only use this service if your primary business is sending users to google full text? Ha! That’s nobody’s primary business!
What terms could possibly restrict us anyway?
Without restricting what Google was trying to do in the first place.
And besides, the whole point of the GBS API having cover images was to let people put a cover image next to a link to GBS. The utility of this is obvious.
But isn’t that exactly what we library catalog users are doing, no more and no less? So what could their terms say?
“you are allowed to use these covers next to a link to GBS, but ONLY if you are not a library or someone else who is the target market for Large Library Market Vendors. You can only use it if Large Library Market Vendor is NOT trying to sell you a cover image service.”
Or, “you can only use it if you’re not a library.”
Can they really get away with that? Just in terms of PR, especially since, unlike Amazon, they get most of their content from library partners?
I know the Major Library Vendors want to keep us on the hook for paying them Big Money for this service. And they’re the same ones selling these images to Google. But it’s unclear to me what terms could possibly prevent us from using the covers, while allowing the purposes that Google licensed them for in the first place.
And what’s the law, anyway?
Then we get to the actual legal issues. To begin with a “terms of service” that you do NOT in fact need to even “click through” to use the service—thus you don’t ever have had to have READ to use the service–I’m not sure it’s enforceable at all. But they could fix that by requiring an API key for the GBS API, and making you click-through to get the key.
But the larger issue is that legal issues around cover image usage is entirely unclear to begin with.
I remain very curious what the Large Library Vendor’s agreements with the publishers (who actually own the intellectual property for cover images, generally) is, and what makes them think they have exclusive right to provide libraries with this content? It also remains an unanswered question exactly what “fair use” rights we have with cover images. Of course, that’s all moot if you have a license agreement with yoru source of cover images, that trumps fair use (thus the “terms of service”. But again, I dont’ see anything in the terms of service to prevent cover image use by libraries).