According to the Volokh Conspiracy, the Authors Guild is up in arms about Amazon's new book search function (Trouble for Amazon's book search?).

Amazon's new "Search Inside the Book" feature allows customers to search the full text of more than 120,000 books. See the press release. It is hard to exaggerate the tremendous value this search function has. Amazon has taken a huge leap foward in providing access to information. Really.

Amazon apparently has the agreement of the publishers to provide this feature. However, the Authors Guild is claiming that the standard agreements between publishers and authors does not give the publishers the right to use the works in this way. The first precedent that comes to mind of course is New York Times v. Tasini, which concerned the right of publishers to add freelancers' works to electronic databases after publication as part of a collective work in another medium. The issues involved in the present case (no lawsuit has actually been filed) certainly aren't exactly the same as Tasini, but there are obvious similarities.

UPDATED 2000 PT

Of course, until we know more about the contracts, the particular claims being made and specifics about the technology Amazon is using, it is really hard to tell what the issues are and what the results might (or should) be. One interesting aspect is that the rules might be different for different sorts of books (technical books and cookbooks vs novels). What difference, if any, this makes will undoubtedly be quite contentious. For example, recipes are traditionally not protected by copyright, so cookbooks would seem to receive less protection. On the other hand, the effect of the search function would possibly have a greater impact on the sale of cookbooks than other types of books. Which issue is the more important? This is going to be very interesting.

One thing is certain, however. Publishing house lawyers are already drafting language for the standard contracts that will ensure publishers have the right to do this for all future works.

Below is the full text of the email as posted on the Volokh Conspiracy:

From: AuthorsGuild Staff [mailto:staff@authorsguild.org]
Sent: Friday, October 24, 2003 5:09 PM
To: Member@authorsguild.org
Subject: Amazon's New Book Database

You might have read about Amazon.com's "Search Inside the Book" program, launched yesterday, in which the entire texts of participating publishers' titles are available on the Amazon.com website. Visitors can locate titles containing search terms they choose, and then access the two pages preceding and the two pages following the page containing those terms. Amazon sets a limit that permits a user to see no more than about 20% of a particular work. The company reports that publishers consented to the placement of all 120,000+ titles in the program.

We've reviewed the contracts of major trade publishers and concluded that these publishers do not have the right to participate in this program without their authors' permission. We wrote to these publishers after we learned about the program in July. Most argued with our interpretation of their contract (no surprise there), but some have said that they would remove a work from the program if the author insisted.

Whether your works should be in the program is hard to say. This program will likely prove to be useful in promoting certain titles. Midlist and backlist books that are receiving little attention, for example, may benefit from additional exposure in searches. For other titles, the program may erode sales. Most reference books would be at clear risk in such a database. So would many (if not most) travel books and cookbooks. Most fiction titles are not likely to be greatly threatened.

When we learned of the program, we thought that it would be impossible to read more than 5 consecutive pages from a book in the program. It turns out that it's quite simple (though a bit inconvenient) to look at 100 or more consecutive pages from a single lengthy book. We've even printed out 108 consecutive pages from a bestselling book. It's not something one would care to do frequently, but it can be done. So a reader could choose to print out all the fish recipes from a cookbook in the program. Or the section on Tuscany from a travel book. We believe readers will do this, and the perplexing question is whether the additional exposure for a title -- and the presumptive increase in sales -- offsets sales lost from those who just use the Amazon system to look up the section of a book when they need it.

Other books at especially high risk include those that sell to the student (particularly college student) market as secondary reading. A student could easily grab the relevant chapter or two out of a book without paying for it. Students certainly have the time and most likely the inclination to do so, and, with the help of some willing colleagues, could print out the entire texts of books in the program.

We'll be sending you more information about the program shortly, and we're going to be in further touch with the major publishers. If you'd like a book removed from the program and your publisher isn't cooperating, please let us know.