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Pamela Samuelson

Pamela Samuelson

Posted: October 13, 2009 12:38 PM

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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