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Google's Trojan Horse

Expanding access to digitized books while building an unprecedented monopoly.

You have to hand it to Google – it really knows how to make a dangerous enclosure of the public domain seem like a beneficent gift to mankind. The company’s ambitious plan to digitize millions of out-of-print books will make unprecedented amounts of information and culture more accessible to everyone. But at what price? Google will acquire an impregnable monopoly over digitized access to books. It will be able to stifle future competition and limit how people may interact with their own cultural patrimony for generations to come. Not a good deal.

Why should Google get to be the sole steward of millions of out-of-print books whose authors or copyright-holders cannot be located or identified? (These books are customarily known as “orphan works.”) University librarians have spent huge amounts of money preserving and curating these books for decades. And now Google shall be entitled to have exclusive control over their digitized incarnations?

Photo by guldfisken, via Flickr, licensed under a Creative Commons Attribution license.

Authors and publishers were not going to sit still for such plans, of course. They sued in 2005, and after three years of squabbling, the Authors Guild and the Association of American Publishers reached a $125 million agreement with Google in October. The settlement covers all copyrighted books in the United States, and gives Google 37 percent of advertising revenues generated by Google’s book search service; authors and publishers get to split the rest.

Google also plans to sell access to its entire collection of digitized books to universities and other institutions. Public libraries would get free access to the books via one computer, and individuals could buy online access to specific books. In most cases, Google could display up to 20 percent of a digitized book without running afoul of copyright law. Once approved by a federal court, the Google settlement will let the company continue to digitize millions of additional books.

But a growing chorus of critics are pointing out that this privately negotiated settlement is essentially dictating a regressive public policy for future generations, all outside of any legislature. Congress ought to be mandating a solution for the public good, rather than letting a behemoth company leverage its clout for its own market advantage.

However, since Congress has shown itself to be largely dysfunctional in reforming copyright law – it recently failed to pass legislation that would rescue orphan works – any intervention will have to go through the courts. A few weeks ago, the American Library Association, the Institute for Information Law and Policy at New York Law School, and a group of lawyers led by Professor Charles Nesson of Harvard Law School registered their complaints in a formal legal intervention to the federal court, which is currently expected to approve the Google settlement in June.

The gist of their objections is that Google will come to enjoy a legal monopoly over digitized books and especially orphan works, and that it would be free to raise prices on access to those works without fear of serious competition.

One of the most penetrating criticisms of the settlement comes from Harvard librarian Robert Darnton. Writing in the New York Review of Books in February, Darnton notes that “the settlement will give Google control over the digitizing of virtually all books covered by copyright in the United States.” He also notes that “the district court judge will pronounce on the validity of the settlement, but that is primarily a matter of dividing profits, not of promoting the public interest.” Darnton continues:

“….Google will enjoy what can only be called a monopoly—a monopoly of a new kind, not of railroads or steel but of access to information. Google has no serious competitors. Microsoft dropped its major program to digitize books several months ago, and other enterprises like the Open Knowledge Commons (formerly the Open Content Alliance) and the Internet Archive are minute and ineffective in comparison with Google. Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. If the settlement is upheld by the court, only Google will be protected from copyright liability.

“Google’s record suggests that it will not abuse its double-barreled fiscal-legal power. But what will happen if its current leaders sell the company or retire? The public will discover the answer from the prices that the future Google charges, especially the price of the institutional subscription licenses.

“…. the settlement creates a fundamental change in the digital world by consolidating power in the hands of one company. Apart from Wikipedia, Google already controls the means of access to information online for most Americans, whether they want to find out about people, goods, places, or almost anything. In addition to the original “Big Google,” we have Google Earth, Google Maps, Google Images, Google Labs, Google Finance, Google Arts, Google Food, Google Sports, Google Health, Google Checkout, Google Alerts, and many more Google enterprises on the way. Now Google Book Search promises to create the largest library and the largest book business that have ever existed.”

This, then, is the peril of a Congress to politically paralyzed to act. Private actors are allowed to supersede the public interest by default.

Darnton points out that Congress could have provided the leadership to build a grand National Digital Library, or to mobilize a coalition of foundations and research libraries to do so. Congress could have assured that publishers and authors would receive their due rewards while assuring the public that it would enjoy open access to digitized books in perpetuity, and that entrepreneurs could arise to compete with Google. Instead, Darnton writes, “we are allowing a question of public policy—the control of access to information—to be determined by private lawsuit.”

I compare Google’s strategy to buying up all the property on the perimeter of Central Park. The park nominally remains in the public domain. Yet if accessing the park virtually requires traversing through Google’s property, the commons is essentially enclosed. Privileged gatekeepers to the commons can achieve enclosure without necessarily owning or harming the commons itself. (The strategy resembles the attempts by telephone carriers and cable companies trying to enclose the Internet through their control of the “onramps” to the Internet.)

For further information about the Google settlement, you can read a neutral summary of it by the American Library Association and Association of Research Libraries. You can also read about a conference at Columbia Law School in February that explored the significance of the Google Print settlement – and possible alternatives. Peter Suber’s Open Access News has collected a number of expert critiques about the settlement. And an April 4, 2009 New York Times account of the settlement is here and a related blog post is “here.”:http://bits.blogs.nytimes.com/2009/04/04/its-not-just-microsoft-thats-balking-at-googles-book-plans