It has been a week since news of the Google settlement with authors and publishers broke. Though rumors had been rife that it was imminent, I was still blown away by the scope of it. Of course the court still has to rule, but the outlines – if they remain intact – are stunning in their implications.
First of all, as Jeffrey Toobin predicted in his 2007 New Yorker article, “Google’s Moon Shot,” the fair use question remains unsettled. Anyone else who tries to follow in Google’s footsteps to digitize in-copyright books had better have a many millions of dollars handy to pay lawyers fees. This puts Google in an incredibly strong position. They will have a lock on great big digitized book collections. They have overnight become an enormous vendor of licensed content. And a huge product with no competitors can set the agenda. Did the libraries who jumped on this bandwagon foresee this outcome? Are they happy with it?
Paul Courant of UMich sees the positive side.
First, and foremost, the settlement continues to allow the libraries to retain control of digital copies of works that Google has scanned in connection with the digitization projects. We continue to be responsible for our own collections. Moreover, we will be able to make research uses of our own collections. The huge investments that universities have made in their libraries over a century and more will continue to benefit those universities and the academy more broadly.
Second, the settlement provides a mechanism that will make these collections widely available. Many, including me, would have been delighted if the outcome of the lawsuit had been a ringing affirmation of the fair use rights that Google had asserted as a defense. (My inexpert opinion is that Googleâ€™s position would and should have prevailed.) But even a win for Google would have left the libraries unable to have full use of their digitized collections of in-copyright materials on behalf of their own campuses or the broader public. . . . The settlement cuts through this morass. As the product develops, academic libraries will be able to license not only their own digitized works but everyone elseâ€™s. Michiganâ€™s faculty and students will be able to read Stanford and Californiaâ€™s digitized books, as well as Michiganâ€™s own. I never doubted that we were going to have to pay rightsholders in order to have reading access to digitized copies of works that are in-copyright. Under the settlement, academic libraries will pay, but will do so without having to bear large and repeated transaction costs. (Of course, saving on transaction costs wonâ€™t be of much value if the basic price is too high, but I expect that the prices will be reasonable, both because there is helpful language in the settlement and because of my reading of the relevant markets.)
Harvard is not so sanguine, according to a story in the Chron. They didn’t allow Google to digitize in-copyright books, and they will stick with that practice.
Harvardâ€™s concerns center on access to the scanned texts â€” how widely available access would be and how much it might cost. â€œAs we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher-education community and by patrons of public libraries,â€ Harvardâ€™s university-library director, Robert C. Darnton, wrote in a letter to the library staff.
He noted that â€œthe settlement provides no assurance that the prices charged for access will be reasonable, especially since the subscription services will have no real competitors [and] the scope of access to the digitized books is in various ways both limited and uncertain.â€ He also expressed concern about the quality of the scanned books, which â€œin many cases will be missing photographs, illustrations, and other pictorial works, which will reduce their utility for research.â€
Lawrence Lessig thinks there’s a lot that’s good about the settlement. We dodged the bullet of a loss on the fair use issue and improved on what was available in Google Books previously without shrinking the definition of fair use:
IMHO, this is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good. That’s good news for Google, and the AAP/Authors Guild, and the public.
Andrew Keen isn’t so sure – as he writes in The Independent, “Will Life on Planet Google be a Nightmare or a Dream?” (And he is one of a few who consider the privacy issues – once a closely guarded value of libraries. We don’t think anyone should keep an eye on what you read. Unless it’s Uncle Google.)
Is Google good or is it evil? Is the company an all-knowing behemoth that is hubristically “transforming our lives”, Big Brother-style, with its intrusive technology? Or is it a plucky, selfless Silicon Valley start-up that is “audaciously” organising all the world’s information for all of our benefit? Is Google Orwell or is it Disney? . . .
The truth — and even on planet Google there remain truths â€“ is that Google’s greed for knowledge is both thrillingly audacious and terrifyingly threatening. Google is, in fact, an Orwell-Disney co-production. The company wants to know everything about us so that it can help us in every way. Room 101, then, on planet Google, is a brightly lit, cheerful place where we can, at the click of a mouse, know all there is to know about ourselves, our neighbours and the world.
Brewster Kahle, not surprisingly, told the Mercury News this is a bad move. “When Google started out, they pointed people to other people’s content,” Kahle said. “Now they’re breaking the model of the Web. They’re like the bad old days of AOL, trying to build a walled garden of content that you have to pay to see.” Of course our libraries are full of enormously expensive walled gardens. And with this settlement we’ll have one more to tend. A big one. A big one with no serious competitors.
While Lessig is cheered that this settlement may well torpedo the flawed orphan works legislation pending in Congress, Georgia Harper encourages libraries to keep working on alternatives to the Google orphanage.
This isn’t the Congressional approach to problem solving (shove the parties into a room and lock the door until they have reached an agreement — and may the strongest interest obliterate the weaker and we’ll call it a compromise in the public interest). This is the publisher’s and Google’s no nonsense business approach: “Hey, let’s just start selling all the books and if there’s money to be made, the owners will either show up to claim it, or the money will lie there for 5 years while we give everyone time to wake up and smell the coffee. At the end of 5 years, we’ll pretty much know what’s orphan and what’s not. What’s not to like?” . . .
Google clearly understood and accepted that this plan was based on an idea I found repugnant: if orphan works don’t have owners, by definition, then why is it that the Registry should keep the money that comes in for books that ultimately no one claims? The publishers and authors just don’t see orphans as really belonging to everyone in the absence of an owner. They see them as belonging to all the other authors and publishers, but not the public. . . .
I want this process to work. I think it has a much better chance of working than that piece of, uh, than that piece of legislation that nearly passed earlier this fall. It doesn’t give us an answer today and it *only* deals with books, so it’s not a comprehensive solution, but it might serve as an example of what works, assuming it does work. But libraries can still do their own research on individual titles that they think may be orphans while we wait for this deal’s market incentives to do their job, and for it to become clear that transparency is in the owners’ best interests as well as the public’s.
For example, I believe that the OCLC’s Copyright Evidence Registry is just as important today as it was 5 days ago before Google announced this deal. Although the publisher/author Registry has potential to be definitive, there will be need for multiple sources of information about the copyright status of works until the publisher/author Registry earns its keep. No source that wants to be definitive can do so if it can’t be trusted.
James Gibson wraps up his analysis in the Washington Post –
By settling the case, Google has made it much more difficult for others to compete with its Book Search service. Of course, Google was already in a dominant position because few companies have the resources to scan all those millions of books. But even fewer have the additional funds needed to pay fees to all those copyright owners. The licenses are essentially a barrier to entry, and it’s possible that only Google will be able to surmount that barrier.
Sure, Google now has to share its profits with publishers. But when a company has no competitors, there are plenty of profits to share.
For more commentary, see the round-ups provided by Library Journal, Peter Suber, and EFF.
UPDATE: Library Journal on not holding our breaths; Peter Brantley on the stinginess of the public library provision.
photo courtesy of stevecadman