The Google Books Case: A Bridge Too Far?
The Google case is being heard in the Southern District of New York Federal Court.
By Michael Stillman
The legal case over Google's plan to digitize millions of out of print but copyrighted books continues to drag on, a federal judge overwhelmed with arguments both pro and con. Judge Denny Chin of the Federal District Court for Southern New York heard further arguments from the seemingly limitless number of parties and declared there was "too much to digest" to make a quick decision. The Judge is going to need a case of Pepto-Bismol to digest all of the self-righteous and self-interested arguments inundating his in-box. This case presents a microcosm of why America doesn't work anymore.
Meanwhile, the government stepped in and, while being sympathetic to the aim of making these millions of forgotten books once again available to the public, labeled the Google proposal "a bridge too far." Unfortunately, opponents only offer a bridge to nowhere, or more accurately, no bridge at all. The Department of Justice is unhappy that the settlement may co-opt copyright law, but copyright law cannot deal with the current situation, and the legislature, which should be taking the lead, is so gridlocked it could not pass a resolution wishing everyone a good day without one side or the other voting or filibustering it down. So now Google, one of those rare American institutions that actually works, gets dragged into the maelstrom. Not that its answer is without flaws; it's just that its opponents offer reams of complaints with no solutions.
As a quick review, the problem arose when Google began its massive digitization process to make millions of old, out-of-print books available electronically. While most are out of copyright, there are still millions of books, potentially anything published after 1923, that is still under copyright. However, most of the older books in this group are long out of print, very difficult to find, and of no further financial benefit to the copyright holders, printing of them having ceased decades ago. Nevertheless, and abetted by a government which extended copyrights to almost a century a few years back, they are officially still under copyright. And, while technically Google should seek the copyright holders' permission first, rather than digitize the books and see if those holders object (which is what they did), such is essentially impossible as those authors may have died many years ago, and who now owns the copyrights is virtually impossible to determine (those who would have inherited the copyrights to obscure books likely don't even know themselves).
When Google chose to go ahead and digitize these old books anyway, two groups representing authors and publishers sued. Google reached a settlement with these groups, which in effect provides 37% of revenues from selling electronic copies to Google and 63% to the copyright holders, or, if they cannot be found, charity. This settlement, however, resulted in a host of objections from others, from competitors such as Microsoft, Yahoo and Amazon, to various government entities, other author and publisher groups, some academics, some library groups, and others with their own particular bone to pick. On Google's side, are other librarians and academics, including the University of Michigan's library, Sony (which makes an electronic reader that competes with Amazon's), some authors, and various organizations such as the National Federation of the Blind that foresees Google's library and voice conversion software opening access to these books to those who cannot see.
So, here is our perspective. It comes not from the interests of Google or Microsoft, Sony or Amazon, but what we believe to be the public interest. The others will take care of themselves, but someone needs to watch out for us.
1. What Google is doing is of enormous benefit to us. Their motivation, be it altruistic or economic, matters not at all. Gaining access to the information in millions of old books, most virtually unobtainable, others requiring searching through libraries far away (presuming they let us in), is of enormous benefit to research, entertainment, and knowledge. This is very, very good.
2. It is irrelevant whether Google makes a ton of money on this, nothing, or loses money. That is their issue. We need to act in a way that best serves the public interest.
3. While seeking permission first to use a copyrighted work is the proper order, in a case where you have 80-year-old copyrights filed by long-dead people and whose ownership is now unknown and impossible to affordably trace, this nicety doesn't work. Where the public interest is involved, and access to knowledge is a major public interest, adaptations, such as requiring the copyright holders, should they still exist, to demand the books be removed is not an unreasonable burden. Copyright laws exist to protect the public interest in the first place. And, when Congress extended those copyrights a few years back to last almost 100 years, under the absurd claim that authors won't write books if they know their great-grandchildren will lose their non-existent royalties only 50 years after they die, instead of 70, Congress was not acting in the public interest. This was Mickey Mouse legislation, literally, as Congress sought to protect the Disney Company's copyright on Mickey Mouse, and made reams of valuable information unavailable to the rest of us in the process. Unfortunately, it's companies like Disney that fill the campaign coffers.
The Google Books Case: A Bridge Too Far?
4. This is not a serious antitrust case. Opponents claim that the agreement provides access only to Google, but nothing stops others from gaining the same deal, and if Google does somehow interfere, the law can step in. The real problem is that competitors don't like the advantage Google gains in being able to offer more to their customers, but they don't want to invest the money Google has to gain the same advantage.
5. Congress can solve this problem by adjusting the copyright laws and setting whatever other requirements are needed to prevent monopoly behavior by Google. Of course, it won't. See number 3 above. With all the various parties involved on both sides, congressmen and senators can't possibly figure out which group is likely to contribute more to their campaigns. Therefore, they can't be expected to figure out which side of the issue they should be on.
6. There is risk in what could become an effective Google monopoly on old books which needs to be taken seriously. Google's motto may be "do no evil," but what if one day they become a typical large corporation with the motto "do nothing but maximize profits?" One subtle change that is happening, as libraries replace physical books with online access, is that people may be forced to pay to read/research some books. Today, it may be difficult to locate them in a library, but when you do, they are free. And, if you have to pay to read enough of a book to realize it is not relevant to your research, research could be inhibited. The cost structure must be such that libraries can afford to provide digital access to books, as they once could afford to buy physical copies. Only the government can guarantee this.
7. Consumer groups have raised privacy issues, and this, too, is legitimate. Librarians have fought to protect your privacy rights regarding what books you read. Google may not be so concerned. They already gather information about your internet browsing habits, supposedly not connected to your specific name, but I have little doubt they can. People have a right to be free from intrusion into their habits, be it by Google, the government, or anyone else.
To momentarily digress, I have been noticing ads showing up recently on various websites for replacement door handles for 1999 Chevy Prizms. Is there such a large market for these handles to justify such advertising costs? Undoubtedly, anyone with a '99 Prizm will have to replace the door handles. After all, they were made by General Motors. But, do enough people own '99 Prizms to justify mass advertising? Well, it turns out my daughter has one of these, and I recently bought three replacement handles for her (the fourth one had already been replaced. That's why I didn't have to buy four). Now, I'm not naturally a suspicious type, but I suspect someone has somehow connected my recent internet purchase with my internet viewing and that is why I'm seeing ads for these Prizm handles. They don't know the fourth one is not original Chevy equipment and assume it will break soon. I would guess there is some sort of "cookie" (I might think of it more as a virus) that is making these ads show up, but however it is happening, someone knows something about me I had no intention to reveal. How much more will they soon know? This is one area where I don't trust anyone, not even Google.
8. Digital access to books cannot be stopped anyway. Those copyright holders who hope to stop Google should remember the hard lessons of the record industry. When I was young, you could buy a record for a buck. In time, the record companies decided that wasn't enough. They eliminated "singles" and required you to buy a CD for $20 with 11 songs no one wanted to hear to get the one song you liked. So people responded with file sharing. The music industry has fought this for years, and finally agreed to make songs once again available for a buck as a downloadable file. It reduced piracy, but has hardly eliminated it. Once the cow is out of the barn, it is hard to get back in. They may have pushed a leg or two back, but a lot of cow is still outside. Meanwhile, the book cow is watching the action, and if publishers and writers become too greedy, that cow is making its way out the door too (provided the barn door doesn't have handles made by General Motors). People have a good sense of what is a fair price, and will pay it, but if merchants get greedy, people will find ways around them, and they will end up with nothing at all. Ultimately, file sharing will be the alternative if Google Books is stopped.