Open Access News

News from the open access movement

Thursday, October 30, 2008

Siva Vaidhyanathan on the Google settlement

Siva Vaidhyanathan, My initial take on the Google-publishers settlement, at The Googlization of Everything, October 28, 2008Excerpt:

...This registry would serve as a helpful database through which scholars and publishers may find rights holders to clear rights. As of today, there is no good database for such book rights for most of the books published in the 20th century. So this has the potential to be a major boon to research and publishing. In addition, it can help rights holders accrue royalties (meager thought they might be) by exploiting a market that currently does not work efficiently or effectively -- reprints or selections from out-of-print works. Google is doing what the U.S. Copyright Office should have done years ago. As usual, Google is making up for public failure -- the opposite of market failure.

Google will offer (with nasty digital rights management) full-text copies out-of-print books (presumably only those books published by members of the AAP, thus excluding university presses, independent and small presses, vanity presses, etc.) for sale as downloads.

Google will offer much better access to many out-of-print works still under copyright. Right now Google offers these texts in useless "snippet" form. There would be much richer and broader access under the settlement....

In addition, this settlement, if it goes through, dodges that great copyright meltdown that I had feared. I did not want to see Google lose this suit in court. And I was confident it would. Google lawyers assured me that they were even more confident they would prevail. And they are smarter than I am. But clearly both sides saw real risk in continuing toward a courtroom showdown.

However, back when Google debuted the library scanning part of the Book Search program, many of my fellow copyright critics celebrated the fact that a big, rich, powerful company was taking a stand to make fair use stronger. Well, it looks like that never did happen. Fair use in the digital world is just as murky and unpredictable (not to mention unfair and useless) as it was yesterday.

But what about the problems and pitfalls of this settlement? I have asked Google folks the following questions:

Isn't this a tremendous anti-trust problem? Google has essentially set up a huge compulsory licensing system without the legislation that usually makes such systems work. One of the reasons it took a statutory move to create compulsory licensing for musical compositions was that Congress had to explicitly declare such a consortium and the organizations that run it (ASCAP, BMI) exempt from anti-trust laws. In addition, this proposed system excludes many publishers (such as university presses) and many authors (those not in the Authors' Guild). More importantly, this system excludes the other major search engines and the one competitor Google has in the digital book race: the Open Content Alliance. Don't they now have a very strong claim for an anti-trust action? ...

Overall, though, I have to offer my congratulations to both Google and the publishers. They forged a beneficial system that could make a difference to many authors, scholars, and researchers while making both Google and publishers a little money that they might otherwise never see....

My major criticisms of Google Book Seach have always concerned the actions of the university libraries that have participated in this program rather than Google itself....[U]niversity libraries have a different, much higher mission [than for-profit corporations]. And they have clear ethical obligations. So I now turn to them.

From the beginning, this has seemed to be a major example of corporate welfare. Libraries at public universities all over this country (including the one that employs me) have spent many billions of dollars collecting these books. Now they are just giving away access to one company that is cornering the market on on-line access. They did this without concern for user confidentiality, preservation, image quality, search prowess, metadata standards, or long-term sustainability. They chose the expedient way rather than the best way to build and extend their collections.

I am sympathetic to the claim that something is better than nothing and sooner is better than later. But sympathy remains mere sympathy. These claims are not convincing when one considers just how great an alternative system could be, if everyone would just mount a long-term, global campaign for it rather than settle for the quick fix....

Ultimately, I have to ask: Is this really the best possible system for the universal spread of knowledge? I think we can do better....