Rivals, Others Seek to Derail Google/Publishers Alliance
The Open Book Alliance has raised vociferous objections to the proposed Google/Publishers settlement.
By Michael Stillman
With time running out to file legal objections to the agreement between Google and publishers for the former to sell digitized copies of in-copyright books, the opposition has grouped to make a final stand. The "Open Book Alliance" is playing the role of General Custer in this last stand, though naturally they hope for a better outcome. The Alliance includes a variety of groups, some commercial, some not, some perhaps spurred by altruistic motives, others with obvious competitive commercial interests at stake. The final hearing in court is scheduled for September 4, with a decision by October 7.
A few years ago, Google reached an agreement with several important libraries, such as Oxford, Harvard, New York Public, later expanded to many more, to scan and digitize old books in their collections. The project (Google Book Search) promised to make vast amounts of hard if not virtually impossible to find information available to researchers and the curious all over the world from the convenience of their personal computers. There has never been anything close to this project in terms of making the knowledge of previous generations available to people of today. While Google does not release figures, we estimate that they probably have scanned around 10 million books by now.
Of course, a project of this magnitude is bound to run into conflict with the private interests of someone. In this case, it was the publishers and writers who saw the fruits of their labor/investments about to be converted to private use without their receiving compensation. For books published before 1923, there was no issue, as these copyrights had long ago expired. However, books published after 1922 could still be under copyright, but Google was scanning and making these books available to the public with no payment to the copyright holders.
Despite the fact that many of the post-1922 books might still be under copyright, Google plowed ahead with their project, including the digitization of many of these books. The first to object were the Authors' Guild and Association of American Publishers, representing the two groups with a financial interest in copyrighted books. They demanded Google cease. Google refused. It might sound logical that Google first seek permission to digitize copyrighted books, but this is not as easy as it sounds. Much research is required to determine which books are still under copyright, and it is even harder to locate the copyright holders if they are. Who do you seek permission from or pay for a 1925 book whose author died in 1930 and whose publisher went out of business in 1935? Seeking permission in advance was essentially the same as saying these books could not be made available digitally to the public. They were doomed to be left to die on a handful of scattered library shelves, never seen, and eventually de-accessioned into oblivion. Google stood between them and this fate.
After some contentious public debate, Google reached a settlement with the authors' and publishers' organizations. Essentially, it provided for the copyright holders to receive 63% and Google 37% of revenues gained from selling access to these digitized books. Writers and publishers gained an opportunity to once again make money from out-of-print books that no longer provided any income at all, the public gained access to these "lost" texts, and Google had an opportunity to make some money in return for making all of this information available to the public. Copyright holders who did not like this settlement were free to opt out and keep their books out of Google's book search. It was a win-win-win proposition. Not so fast.
The Open Book Alliance, which is making the most vocal objections to this arrangement, is a consortium of private interests and public-spirited groups. It includes both of Google's major search rivals, Microsoft and Yahoo, and book (including e-book) competitor Amazon. It also includes several library and printing organizations which may or may not have conflicting private interests, and the Internet Archive, a wonderful, public-minded organization that has been scanning old books longer than Google and provides that outstanding database of websites as they appeared in the past, the Wayback Machine. The Internet Archive digitizes, for free public access, out of copyright and in-copyright books, but seeks copyright holder permission first before scanning books that are still under copyright protection (however, we might note, they do not seek permission to make available the older and deleted versions of copyrighted websites found in the Wayback Machine, even though the owners might wish those earlier iterations would disappear). Not surprisingly, the Internet Archive collection of digitized books is tiny in comparison to Google's.
Rivals, Others Seek to Derail Google/Publishers Alliance
While there is merit to some of their objections, to us this appears for the most part like the makers of horse-drawn carriages in the early 20th century attempting to pass laws that would make the use of automobiles impractical. They are standing in front of the tides of time, or at least, like Custer, in front of a flood of Indians. Digital access to old, hard-to-find texts is so superior in terms of practicality that it will happen, period. Progress cannot be stopped, and this is clearly progress.
The Alliance objects to Google, in effect, gaining a monopoly on access. To the extent that there are limitations on competition, their objections are reasonable. No one should be able to gain a monopoly on the future, even if they are the first. However, to the extent that Google's "monopoly" is based on their being the only outfit willing to invest in the costly scanning necessary to create this digital collection, then they have earned their position. After all, the only alternative to this kind of monopoly is nothing at all. And, Microsoft complaining about Google having a virtual monopoly when they have defended their own virtual monopoly on operating systems and software for years strikes us as, well... let's just say ironic.
Google's settlement with the authors and publishers both does and does not create a monopoly. It is not an exclusive agreement. It does not prohibit the copyright holders from signing agreements with other digital providers. However, it does not provide similar arrangements for others either. They are free to negotiate with the copyright holders, but they are not guaranteed access to these works on similar terms. Of course, this can also be said of suppliers to Wal Mart. There is no guarantee manufacturers will sell their products to your country store on the same terms that they sell to Wal Mart. They might charge you more, making it difficult to compete against the giant. Large customers often get better deals, and Google is likely to be the largest customer for this product. That said, there is nothing in this agreement that suggests the publishers and authors would not make their books available to others in a 63%-37% deal either.
The Open Book Alliance states, the settlement "would allow a group of erstwhile competitors to collectively set prices and leave Google as the only company with the right to copy, display or sell digital versions of orphan works (books for which authors or rights holders cannot be identified or located). Consumers would be better served by a competitive market for digital books that is available to everyone on non-discriminatory terms." That may be true, but no one else is undertaking the efforts necessary to offer these books to the public. In effect, Google is granted a "monopoly" because no one else has yet asked for permission to offer these books. Microsoft scanned about 700,000 books but then dropped the project, evidently concluding it would not be profitable. Google did not force them out of the business; they simply chose to exit. And, as for lack of competition, books have always been subject to such constraints. After all, you can't publish a copyrighted book. For most, there is one publisher who holds a monopoly on publishing rights. That's true of virtually all of these books. At least Google is offering a second way of obtaining these books, rather than having to rely on a monopolistic publisher who may never print another copy of the title you want.
The Alliance objects that community libraries get only one free-access terminal to these books, school libraries none. However, this is more than they have now. They still keep their hard copies, so what is offered, including that one free-access terminal, is incremental. They object that writers lose negotiating rights to their work, but they can still act to withdraw approval at this time. In an ideal world, permission should be sought from them first, but as previously explained, that just doesn't work for millions of books published as long as 86 years ago.
This does not mean that we are without concerns over what could be a monopoly on information. Google has become dominant in search by providing a better product, not by unfair competition. They are now taking their superior product a step further by not just providing the same information available to other searchers in a better manner, but by providing information not accessible to others. That may further solidify their dominance in search and make all of us very dependent on Google for information. That is not a perfect situation, and the government will have to be vigilant less Google someday move from its "do no evil" policy to become the Standard Oil of information. However, for now, it is Google that is investing the most to provide us with information, and Microsoft, Yahoo, and Amazon, which could do the same, would be better served by working with the Internet Archive to develop a competing repository of data. Complaining about how the other guy provides a wonderful new service without providing an alternative is just standing in the way of progress. They need to offer an alternative, or move aside.