Google, Robert Darnton, and the Digital Republic of LettersRobert Darnton recently published an essay in the New York Review of Books on the Google settlement. There has been much commentary in blogs, listserves, and print media. Below I reproduce a letter that I sent to the New York Review of Books, that they found to be far too long to publish. It is my understanding that they expect to publish a much-shortened revision. In any case, here's what I had to say.
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To the editors:
My colleague and friend Robert Darnton is a marvelous historian and an elegant writer. His utopian vision of a digital infrastructure for a new Republic of Letters (Google and the Future of Books, NYRB Feb. 12) makes the spirit soar. But his idea that there was any possibility that Congress and the Library of Congress might have implemented that vision in the 1990s is a utopian fantasy. At the same time, his view of the world that will likely emerge as a result of Google's scanning of copyrighted works is a dystopian fantasy.
The Congress that Darnton imagines providing both money and changes in law that would have made out-of-print but in-copyright works (the great majority of print works published in the 20th century) digitally available on reasonable terms showed no interest in doing anything of the kind. Rather, it passed the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act. (More recently, Congress passed the Higher Education Opportunity Act, which compels academic institutions to police the electronic environment for copyright infringement). This record is unsurprising; the committees that write copyright law are dominated by representatives who are beholden to Hollywood and other rights holders. Their idea of the Republic of Letters is one in which everyone who ever reads, listens, or views pretty much anything should pay to do so, every time. ...
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... The settlement is far from perfect. The American practice of making public policy by private lawsuit is very far from perfect. But in the absence of the settlement - even if Google had prevailed against the suits by the publishers and authors - we would not have the digitized infrastructure to support the 21st century Republic of Letters. We would have indexes and snippets and no way to read any substantial amount of any of the millions of works at stake on line. The settlement gives us free preview of an enormous amount of content, and the promise of easy access to the rest, thereby greatly advancing the public good.
Of course I would prefer the universal library, but I am pretty happy about the universal bookstore. After all, bookstores are fine places to read books, and then to decide whether to buy them or go to the library to read some more.
Here is what I replied in the comments to Paul's post:
Paul,
Thanks for this thoughtful response to Bob Darnton's article. Bob missed, and thus you missed in your reply, the real tangle over Google's complete control over this new market in out-of-print book rights: the price that Google will set to its advantage is the royalty payment to copyright holders, not any price to libraries. There is no price for libraries, as I understand it, in the settlement.
Google has established a compulsory license system sui generis, without legislative backing and the necessary exemptions from anti-trust. So it's going to be thorny.
The fact is that Google has all the power in this relationship. It can dictate terms to all parties as time goes on and Google changes its priorities. The current details matter a lot less than the structure of the settlement, which is very dangerous. That it is dangerous does not mean it is pernicious. Early airplanes were dangerous without being pernicious. But we had to work out a lot of norms, laws, and technologies before we had a viable air traffic system. So goes this system.
Writer, publisher, and reader beware.
Siva
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Comments (2)
I hate to say it, but I think everyone is wrong when it comes to the Google Settlement. Even Google is wrong!
First of all, Google gets a *non-exclusive* right to digitize and sell out-of-print work. Unless the rights-holder objects. Most pundits ignore this point, and lead their readers to believe that that Google has acquired an *exclusive* right.
Second, none of the players wants Google to have a monopoly in this area. The Authors Guild does not, the Publishers do not, the libraries do not, and the Department of Justice does not.
Even Google does not want a monopoly on bookselling or e-book selling. Such a position will expose them to DOJ action, and will frustrate their true aim: to have as large a share of the search and online advertising market as they can get away with.
It is worse than ironic that the cognoscenti are worrying about Google getting greedy hands on the traditional publishing and bookselling business. This is a static, and even declining, area of the economy. Just like the newspaper business, which Google entered and exited (through its advertising program) with alacrity.
Similarly, worries about Google monopolizing e-publishing and multi-media authoring are misplaced. Has anyone been watching the economics of online video lately? If so, then you know that Youtube has hardly turned out to be a cash cow for its owner.
Paul Courant is right that we should not allow the best to be the enemy of the good. What Google has done and is doing with regard to universal access to the written word is nothing short of stupendous. He is also certainly correct is saying that the US Congress would never have paid for the digitization of every book ever written--or anything close to that.
Indeed, if Congress had done so, it would have wasted a pile of taxpayer money. Such a program should only be undertaken when it can be a true *preservation* program, and we don't yet know how to design such a program, much less how to maintain it. See the recent report of the Blue Ribbon Task Force on Economic Planning for the Preservation of Digital Data. http://www.oclc.org/research/announcements/2008-12-17.htm
Yes, once the Settlement is approved, Google will have a massive head start on supplying libraries and the general public with online access to scanned text. But there will be plenty of room for other players to carve out specialty niches replete with value-added services. Take one simple example: who can build a better Web 2.0 fan and reader site for
"supermarket-style" romances--Google or Harlequin?
Oddly enough, the worst part of the Google Settlement may be the most obscure and least profitable: the research corpus. If Google's book subscription database, which will allow you to read everything, is not married to the planned research database--which optimizes data-mining but severely restricts what is called "consumptive" access (also known as reading), then a major academic crime will have been committed--with the aid of some of our "most advanced" university libraries.
In every agreement I have seen, the host libaries are allowed to have copies of all the Google scans of their books. So theoretically, Google isn't the only distributor of the materials-- in fact, I believe Michigan has independent online access to their scans.
No, what I worry about is that in no library agreement is Google required to provide free downloads of public domain books. They are required to allow simple viewing, but not downloading, which means our ability to do so right now is entirely discretionary on their part.
I suspect this privilege will not last, especially when Google dumps all of the 1922-1964 public domain works into the 'corpus,' which they are required to do, and soon, per the Agreement.
If anything, they will eventually start to charge for PD downloads, which is why many people are dumping huge lots of Google scans into the Internet Archive in San Francisco. Google is not objecting to this, which may be their way to rationalize a future change in policy.