The Googlization of Everything

Walt Crawford, who writes a valuable library blog called Walt at Random, took issue with my use of the term "privatization" to describe the Google Book Search project.

He wrote a long response to Karen Coyle's criticism of his earlier article on the deal.

Here is the response I entered in Walt's comment box:

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Hi Walt,

I just thought I would weigh in on the privatization question. I see that you and Karen are in the midst of a heated argument. I don't need to speak to every point of what seems at this time to be one of diction and manners. I respect both of y'all very much. So I hope I can push the argument beyond its current domain.

To be clear: the privatization indictment does not fall on Google. Google is private. It does what is good for it. Google is not the problem here.

The privatization accusation is one that bears on the university libraries that have -- for the most part -- given away millions if not billions of dollars worth of collections to a private entity with no clear return and at great risk of liability. The libraries are committing self-privatization. That has two levels: the terms of the original deals with Google and the new vending machine proposal that comes from the settlement.

This whole project is gross corporate welfare. The currency at stake is a non-rivalrous good. So it's not like federal subsidies to Agribusiness. It's of a lower scale and stake. But it's welfare nonetheless. The system profits Google and Google alone. The libraries see little or no benefit from the deal. So let me explain what I mean by that.

You raised a strong rebuttal: Google as patron. Let's say I walk in to a library. Use the collections. Check books out. Make copies of some of the content. Then I set about creating something new that relies on that content that I sell on the market. That's in fact what I do with the books I write. Good enough.

How is Google different? No patron taxes or binds libraries like Google has.

First, when I use a library I do not tie up the staff time of dozens of employees for years at a time (at least I hope I don't). This is happening at every Google partner library. I do not make librarians sign non-disclosure agreements that prevent them from discussing the pros, cons, and costs of the my use with the public (or even their own faculty). My use of the library is compensated by the taxpayers of the Commonwealth of Virginia and by the fees my students pay.

Google, in contrast, "pays" directly for this windfall through an illegal barter arrangement by which it agrees to make low-quality wholesale copies of millions of books (that Google chooses, thus not necessarily serving the interests of the library).

Why is it illegal? Well, because of the un-litigated and thus unsettled copyright infringement issue: Google is transferring copies as payment for a commercial transaction. Nothing in Sec. 107 0r 108 or any case relying on these sections grants a right to make copies of copyrighted works and transfer them as payment. Nothing in the settlement prevents publishers from suing universities if they don't like how universities are using the material. That's such a scary prospect that many Google partners -- including my employer -- have declined to download these images from Google's servers. University lawyers are rightly alarmed at the liability prospects. So for many universities it's worse than a something-for-nothing prospect. It's a loss. They lose staff time, lawyer time, and books from circulation for weeks at a time. Yet they get nothing.

Now, I am willing to say at this point that if Hathi Trust flowers into what its visionary leaders predict, I am willing to withdraw many if not all of these concerns.

Let's remember that the UC system deal and the Michigan deal are the exceptions within the Google Book Search universe. These universities negotiated better terms for themselves early on. Michigan is still cutting better deals even now (see http://www.wired.com/epicenter/2009/05/umich-gets-better-deal-in-googles-library-of-the-future-project/) The rest of the libraries are finally coming around to realizing what a bad deal this was for them and the extent to which they were scammed. Harvard did not back out just because Bob Darnton likes the smell of books. He dislikes the smell of the contract he inherited from the Larry Summers regime. I have heard clandestinely that a number of other partners are considering terminating their deals if they are not substantially renegotiated.

The second part of the privatization is the vending-machine model of delivery that Google is pushing on libraries through the settlement. Libraries will for the first time have little bookstores inside of them. That's bad enough. But libraries will have no recourse if Google overcharges for the service or (more likely) puts onerous terms on the use of the material. That's blatant privatization of public library space. Now, I'm no purist. And I recognize the value of hot-dog vendors in Central Park. But this has not been part of a process by which the libraries have been invited to the table or been able to stand up for traditional values of librarianship: free and open access; user privacy and confidentiality; preservation; a public space free of commercial influence; etc.

So while the word "privatization" is unsubtle and imperfect, it's relevant and important in public discourse about this project that will have tremendous impact on the future of libraries and the public sphere. I use it because I have to pop the bubble of perception that Google works for us. And I use it because I have since 2004 wanted libraries to see that Google does not work for them. Google works for its shareholders -- as it should be. We as citizens and members of the library community have not been as critical or vigilant as we should have been. And sometimes strong words like that serve the purpose of waking people up and pulling them into the conversation. The fact that criticisms of Google Book Search and the settlement have grown louder and wider in recent years is evidence of the value of such tactics.

Privatization is not a boolean quality. It has gradations. If I can't convince you to see this massive project of text-giving by public libraries to one of the world's most successful and aggressive corporations as part of the process of privatization, so be it.

Brewster, Karen, and I are hardly naive about the steady privatization of library services through expensive vendors etc. Brewster, after all, made his killing through the private sector in the first place. But we all recognize the virtue in minimizing the influence of private interests within and among public institutions -- especially libraries.

Oh, and BTW, OCA will not necessarily be around forever. It depends on philanthropy. And philanthropists don't like to duplicate what the private sector is already doing. Moreover, if the settlement goes through OCA will not be able to compete at the level of full-text availability for most of the books of the 20th century. So there is no point even comparing them. And I think we all have to consider the pressures that non-librarian boards and administrators put on libraries to reduce their collections whenever there is a potential "alternative" to the physical item. And Google is just that sort of poor substitute for the original. I wish I were as confident as you that the OCA will be part of the mix 20 years from now. I think a bigger danger, however, is that Google either goes bust or transforms into something very different. What if its board in 2020 decides the book project is a money-loser. What then?

These are serious issues, even if you don't want to traffic in terms like "privatization." I know that you get that and I value your contribution to their consideration.

So what do you want to see next? What should libraries do in the case the settlement is approved? What should they do if the court rejects the settlement or the Feds pursue anti-trust action against Google?

I have some big ideas. I would love to hear yours.

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UPDATE:

Later, in reaction to some comments on Walt's blog, I wrote:

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I believe Eric has raised a very important point that reflects on a very different notion of "privatization," and that is of policy. There was this problem or challenge: It's safe to say that creating a text-searchable digital index of millions or billions of books, and making them available via the Web would benefit the republic and the planet. Let's just assume that.

Given that assumption, what prevented us from doing that? Three things: the concentration and expense of the delivery technology (the Web); the expense of scanning, indexing, maintaining, and supporting the collection (what Google is doing but libraries should have been doing); and changing copyright law to facilitate this scanning under the right conditions.

The first challenge took care of itself for most of the United States and Europe -- mostly through libraries. But we still have a long way to go with the rest of the world.

The second challenge is being met (poorly, I would say) by Google boldly reaching out and doing it. Whether libraries should have given away their riches to Google was the subject of most of the debate within the library community before the settlement.

That third challenge is a doozy. Congress should have decided this issue. I firmly believe that if we want something in this country we should petition the legislature and launch a political movement toward that end. Going to courts to solve the problem is unhealthy and risky. This was one of my main criticisms of the Google project before the settlement.

Now, if the settlement prevails, we will see a radical change in the law. Private law is being used to shape public policy over one of the most precious aspects of republican ideology: the incentive system we rely on to fill the public domain with rich texts. This settlement establishes one company as the sole arbiter of a compulsory license over millions of books. It does so through the class-action process. It would establish an elaborate system not unlike ASCAP or BMI, but without the legislative scrutiny, deliberation, and specific exemption from antitrust.

This is too important to be left to the discretion of one search engine company, a small group of major publishers, a small group of elite authors, and one federal court in the Southern District of New York.

The rest of us should have stake in this process. We do not. We can blog about it all we want but none of the parties cares about our issues and concerns.

A handful of private actors are making public policy -- thus privatizing the policy-making system.

That's actually a bigger problem than whether the act of capture "privatizes" the library. We can dispose of semantic disagreements. We can't dispose of this rather radical change in how policy is implemented.