Google Books Is Not a Library

Sergey Brin published an op-ed in the New York Times last Friday likening the Google Book initiative to the famous ancient library of Alexandria. Brin suggested that Google Books would be "a library to last forever," unlike its Alexandrian counterpart that was ravaged by fire. A digital library containing all the world's knowledge is a laudable goal; just ask Brewster Kahle, who established the Internet Archive in 1996, years before Google was founded, and who has worked tirelessly to create it as a non-profit true digital library.

Unlike the Alexandria library or modern public libraries, the Google Book Search (GBS) initiative is a commercial venture that aims to monetize millions of out-of-print books, many of which are "orphans," that is, books whose rights holders cannot readily be found after a diligent search. David Drummond, Google's chief legal officer, has estimated that about twenty per cent of the books in the GBS corpus are orphans, but other estimates are higher. Even twenty per cent, however, equals millions of books. Under the settlement announced last October, Google and the publishers and authors who sued it for infringement agreed to hold on to the revenues made from sales and licenses of orphan books for five years, but thereafter to pay the monies out to registered rights holders--that is, to people who had neither written nor published the books in question, a pure windfall for them. The U.S. Department of Justice (DOJ) has objected to this part of the deal, as have several states.

If Google Books was just a library, as Brin claims, library associations would not have submitted briefs expressing reservations about the GBS settlement to the federal judge who will be deciding whether to approve the deal. Libraries everywhere are terrified that Google will engage in price-gouging when setting prices for institutional subscriptions to GBS contents. Google is obliged to set prices in conjunction with a newly created Registry that will represent commercial publishers and authors. Prices for these subscriptions are to be set based on the number of books in the corpus, the services available, and prices of comparable products and services (of which there are none). Given that major research libraries today often pay in excess of $4 million a year for access to several thousand journals, they have good reason to be concerned that Google will eventually seek annual fees in excess of this for subscriptions to millions of GBS books. This is because Google will have a de facto monopoly on out-of-print books. The DOJ has raised concerns that price-setting terms of the GBS deal are anti-competitive.

Besides, Google can sell the GBS corpus to anyone without anyone's consent at any time once the settlement is approved. If Google or its successor in interest decided to price gouge or shut the GBS service down, there is nothing in the proposed settlement agreement that would prevent them from doing it.

Brin and Google's CEO Eric Schmidt have also been saying publicly that anyone can do what Google did--scanning millions of books to make a corpus of digitized books. They perceive Google to have just been bolder and more forward-looking than its rivals in this respect. But this claim is preposterous: By settling a lawsuit about whether scanning books to index them is copyright infringement or fair use, Google is putting at risk the next guy's fair use defense for doing the same. And if one of Google's rivals aims to develop a commercial database like GBS when it starts scanning, it won't have a fair use leg to stand upon. Nor is there any reason to believe that any lawsuit against a rival could be settled on comparable terms to those Google has obtained in the current deal. The DOJ has urged the parties to find some creative ways to allow others to obtain a comparable license from the settling class of authors and publishers.

Brin forgot to mention another significant difference between GBS and traditional libraries: their policies on patron privacy. The proposed settlement agreement contains numerous provisions that anticipate monitoring of uses of GBS content; so far, though, Google has been unwilling to make meaningful commitments to protect user privacy. Traditional libraries, by contrast, have been important guardians of patron privacy. When you enter a library, you can search for books without anyone tracking your queries, you can read whatever is available for as long as you want without anyone monitoring your intellectual privacy, and you can check books out knowing that the records of what you've checked out will be protected from disclosure by state laws and by librarian ethics obligations. Google has commercial incentives to store and process data about what you read, how long you read it, and what you read next, and then serve you ads that it thinks are appropriate given the searches you have just done.

That Google will serve ads alongside search results that yield GBS results is not surprising for the open Internet searches that users will do. But Google is now pressing university partners to accept ads even for the institutional subscriptions. Anyone aspiring to create a modern equivalent of the Alexandrian library would not have designed it to transform research libraries into shopping malls, but that is just what Google will be doing if the GBS deal is approved as is.

 

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Comments

[pbfriedman]

Professor Samuelson: exactly how is it that by settling Google is 'putting at risk the next guy's fair use defense for doing the same"?

A settlement has no precedential value. Are you suggesting that if Google settled obviously the defense is not worth litigating in this case? If that's the case, then there's really nothing being risked.

But, honestly, I have no idea what you mean by this.

[Pamela Samuelson - Huffpost Blogger]

By settling this lawsuit, Google is likely to be viewed as implicitly admitting that its scanning of books to index them was infringing. Its willingness to pay rights holders $60 per scanned book will also look like compensation for infringement, even if Google may still believe its scanning was fair use. The next scanner will then face an argument that if Google should have gotten permission to scan, so should he/she.

Moreover, now that Google has scanned millions of books and is making them available, the necessity argument that Google could have made in the absence of the settlement (it is necessary to scan these books to make them more accessible) is less compelling.

Finally, Google had the resources to litigate the fair use defense to the hilt, which most other institutions, especially libraries and universities don't have comparable resources. Librarians are saying, at least in private, that they are frightened to scan books because of the settlement whereas they would have started scanning at least old books had Google won the fair use case.

[kevinheisler]

It's unlikely Sergey Brin (or the Google Public Policy PR team) wrote the headline for his op-ed piece. The phrase "a library to last forever" isn't his term. Yet I'm skeptical that the words and arguments in the op-ed piece are truly those of Sergey Brin.

Brin would never make this egregious error: "The Stanford-Lockheed Meyer Library Flood Report, published in 1980, but this book itself is no longer available."

A simple Google web search reveals "The Stanford-Lockheed Meyer Library Flood Report," is available, as @mauraweb from Brooklyn noted on Twitter, in at least four libraries: http://bit.ly/2d5E1S

If opponents in the Google Books debate had replicated the Google Books searches cited in the op-ed piece, they'd find results that Brin -- on whose desk the search quality buck ultimately stops -- would never deem acceptable.

The keywords "Insurance Year Book 1880-1881" (exact match) deliver the following Google Books Search result: http://bit.ly/379Jd2

"No results found for 'Insurance Year Book 1880-1881'."

Many authors I've spoken with aren't experts on Google. They don't know whether the estimated $60 per published book that Google may pay is a good deal.

The overriding issue for them isn't who can afford to buy a book. It's "Who Can Afford to Write One?"

Can Google afford to pay more for the rights to authors' works so invested with their lives?

[TheBrimeCow]

Prof. Samuelson,

Your statement that the Internet Archinve was founded "years before" Google is factually tenuous. Yes, Google as a company was founded in January of 1998, but the domain had been registered in 1997 and google existed before that on Stanford's (you know, that other big university, not far from UC Berkley) website and existed as early as January 1996, roughly the same time as the Internet Archive .

Your use of "years before" is only really correct if you take the 1998 corporate foundation date. Even then, it is just barely years in the plural sense and your use of the word "years" suggest more than simply two years. It is a misleading attempt to make the Internet Archive (a worthy endeavor, no questions) sound like it had been long-establish before Google even existed. It would be better if you pointed out that Google's book project is a more recent endeavor than Google itself.

[MadMoll]

And, here, I thought Wikipedia was the 'new Library of Alexandria"

[Inquisitr]

Google books is bring me free great books. that I can download and read over and over again.

They're not making any money (except maybe thru ad sales). I haven't been charged anything yet.

Free books.

You're going to have an actual you know..reason, if you want me to turn against this. Now excuse me while I read the trotsky I downloaded from google books.

[Sumocat]

Comparing Google's venture to a romanticized view of the Library of Alexandria is an easy way of scoring debate points. Of course, if you consider the speculation that the LoA had a vested interest in the papyrus industry, forced city visitors to surrender their written materials for duplication, and charged exorbitant fees to borrow materials, Google's venture looks less diabolical by comparison.

[classicalgeek]

Project Gutenberg was started by Michael Hart, and is run entirely on volunteer efforts. Volunteers scan and proofread out-of-copyright works and make them available in a variety of easy-to-access formats (usually plain text, and where illustrations are necessary, HTML or another widely-used format). From some very humble beginnings, they now have an impressive library of books that are free for anyone in the world to use.

I have no problem with Google profiting from out-of-copyright works. Every publisher who puts out a new edition of Dickens, Austen, or Flaubert does the same. If they were buying up the only copy of an out-of-copyright work and refusing to release the original manuscript, that would be a different matter. As long as there are alternatives, like Project Gutenberg and the Internet Archive, there should be no problem with Google Books existing alongside those alternatives. If the libraries are worried, let them band together, scan their books, and form their own corpus, or petition the Library of Congress to do so. My own library subscribes to Netlibrary, which already makes thousands of books available in digital format. You "check out" a book, read it, and "check in" the book, and read the next one.

[Jared15]

Hmmm. I had no idea that's how libraries worked. I just figured that once they bought the books, they were done paying anybody. Kinda crappey if you think about it, they are just loaning a book they bought to people who don't pay anything to them.

[Joel Redman]

For books, that's true. However, modern libraries -- particularly university libraries -- offer more than just books. There are many electronic journal archives that are subscription based, and extremely expensive.

[Jared15]

Good to know. Thanks.

[Jaywalkker]

I've been able to post references in online posts and school essays using Google Books, its easy to use. If they followed proper due diligence where the rights owner is concerned, how is it a loss? Personally I see Glenn Beck's appropriation of the Common Sense pamphlet for his own ideological dribble more insulting monetarily.

[Tim303]

Very well argued. Thankyou. The way that lawsuit went down sucked.

[thnk4selfagain]

Sergei Brin's Op-Ed was self-servingly grandiose. If Google wanted to preserve knowledge from disaster, ravages and vagaries of time, they they could have set up some sort of non-profit foundation model that could not be privatized if it changed hands. The National Archives or Libarary of Congress could be a partner. .