Within the past two days the news came out that Google was shot down by Judge Chin for overstepping in the Google Books case, and that Google is forking over half a million dollars to detect Internet transparency issues.
On the topic of a Google books: I am not by any stretch of the imagination a copyright lawyer, so I’m not really qualified to be issuing opinions on this subject. I’m really looking forward to Kevin Smith’s blog post on this topic. However, I think that Judge Chin really blew this one. First of all an opt-in arrangement, as Google has pointed out, is completely untenable. As a result, a vast number of orphan works will be lost for to public use, which is a social tragedy of the highest order. Second, I will grant you that perhaps Google would gain essentially a monopoly over orphan works. However, who else but Google could do this? I don’t see Microsoft or Amazon stepping up to this particular plate. This is my objection to Siva Vaidhyanathan‘s Googlization of Everything arguments: yes, on the one hand he is right that it is a bit of a Faustian bargain. However, who else is going to do these things? It sure as hell isn’t going to be libraries or the library community generally. It should be, but it hasn’t been and it won’t be. It is, unfortunately, Google or nobody. I say this to my classes all the time, and I’m sure my students are tired of hearing it, but Google is fighting libraries’ fights for us, and has been for years.
On the subject of Internet transparency issues: Google is developing a set of tools that will be immensely useful in political crisis situations, such as existed in Egypt and exists in Libya, and according to the reports they are going to give it away for free. Let me emphasize these points: Google is creating a set of technology tools that are clearly useful in the service of social change. Also, Google is giving it away for free. Why are they doing this? Clearly, it is in Google’s business interest for there to be more, rather than fewer, users on the Internet. It really doesn’t matter why there are fewer — ISPs throttling users, governments cutting off ISPs, etc. It’s in Google’s business interest to prevent or limit this. Still, that business interest has the happy side effect of enabling the creation of tools that can be used for social change.
Which brings me to the title of this post. Can I become a citizen of Google, please? I haven’t seen a single government on the planet do as much to promote the public good in the online arena as Google has done within the past several years. I’ve been following the reporting and tweeting about Tunisia, Egypt, Libya, etc. with great interest. And I’m coming to the conclusion that what is good for the Internet is good for society. Increasing channels of communication is good for society, and the Internet allows for an increase in the number of channels of communication. That’s overly simplistic, admittedly, but that’s what it boils down to. Enter Google. It is in Google’s business interest to enable use of the Internet, and to foster the existence of online channels of communication. The fact that this is a profit-making endeavor for Google does not, I think, change the fact that by pursuing their business interests they are also incidentally providing tools for the benefit of society… whether those tools are to detect Internet throttling, or to provide large corpuses of texts accessible to every one of the several billion internet users on Earth. Let me be more clear. I am coming to believe that by pursuing their business interests Google is making the world a better place. And I can’t believe I’m hearing myself say this: I sound like a Conservative. I’m the last person who would claim, uniformly, that business can run the world better than government. But in this case I’ll make an exception. Somebody tell me I’m wrong. Do I wish that some public or nonprofit organization were doing these things? Yes. But I don’t see anyone stepping up to these particular plates in such a systematic way. If not Google, who? If Google decided to run their own country, I would very likely want to move there.
If it is “piracy” for an individual profits from the scanning, re-publishing and sale of a copyrighted work without the explicit permission of the copyright holder, it is unconscionable that a single corporation, and only that corporation, be granted that right profit from millions of such works through the act of a court. Judge Chin didn’t reject the settlement only because of copyright concerns, he rejected it because approving it would be a gross abuse of power.
There are other reasons also, and he also brings up the point that an orphan work is only an orphan until someone finds the copyright holder. They’re not even trying. Cry me a river of data documenting people’s reading habits, Google.
There is a paradox in your comparison of Google Books and their investment in “internet transparency”. If both of these are for the public good, why should asking for permission of individual copyright holders be “untenable”? The issue isn’t that Google *couldn’t* ask for permission, it is that it will not make them nearly enough profit.
I will not be surprised to see Google and the plaintiffs go back to the drawing board and come up with something within the scope of the court’s power. You’ll get your universal bookstore, just not on these terms. If you want citizenship, the cost opened today at $575.19 a share.
caleb take 2
So maybe I’m a little harsh. The short, politer version is that I don’t think handling orphan works – or even handling indivually-held copyrights where the rightsholder is known – is untenable for a *public good*. It is untenable for a profit-making venture, which Google is. Evil or not, they are beholden to shareholders, who won’t like to see Google Books in the red. You are dead on that libraries won’t get our shit together to do it. The Berkman folks, maybe, we’ll see. But beyond that, I think a single and single-minded library could pull it off, with enough fiscal support. LC or Harvard or UNC, you know.
The argument I’ve read for why an opt-in arrangement is untenable is this: The copyright status of orphan works is unknown. Why is the copyright status unknown? Maybe a work was published by a publisher, which was bought by another publisher, which was bought by another publisher, which went out of business. Maybe a work was self-published and the author left no heirs. Who knows. The point is, there are any number of possible issues that would cause a work to be orphaned, all of which would require detective work to unravel. So ok, I’ll concede, Caleb, that “untenable” is a word which here means “will not make them nearly enough profit.” But I’d argue that it’s also untenable for any organization: LC or Harvard or UNC? No way. Hathi? Maybe, but only by spreading the load of the detective work. Which makes me think of something I didn’t before: this is the perfect job for crowdsourcing. There are probably enough mad bibliophiles out there who would leap at the chance to track down the copyright status of some obscure work.
And, as an aside, it would not be ONLY Google who would have the right to profit from orphan works. My understanding is that there is nothing in the settlement that prevents other organizations from also digitizing orphan works. Google was the first mover, but there is no restriction that they be the last.
I’m thinking LC or UNC or Harvard can solve the universal library problem, not the orphan works problem. A public institution or non-profit can do it because they aren’t expecting a financial return. So I dream, but I think that this is something important enough to do correctly.
I think what I really like about this decision is that Google isn’t allowed to force a change in copyright law by flouting it and stepping all over people. Change is needed to copyright law, but it should be a deliberate and legal process. I may change my mind about that in the future, we’ll see how Disney reacts to churn in thinking about copyright.
So yes, lets crowdsource. But I don’t even have a sense that we have a list of orphan works to work from. We [they] have a massive database of scanned images. Doesn’t CCC and other bodies already keep track of the copyright status of works? I’d love a mushroom-hunting type guide to tracking down copyright holders.