Oy. The Google Print discussion just keeps going on, and on …
Karl-Friedrich Lenz makes the point that Yahoo!’s opt-in only venture, and older search databases that licensed content, weaken Google’s case. Yep. As a copyfighter, though, I resist the idea that copyright-holders already legally possess that level of control over copyrighted works, and can force an indexer to the bargaining table to index the content. Yahoo! claims that they didn’t do it this way to screw Google, but I can’t help but think that they did; or at least there was a serious sense of two-dead-birds in their choice of the opt-in model.
Derek Slater made the point that supporting Google Print does not mean not supporting libraries, and he did it very well. If I had seen his post, I could have saved myself the trouble of writing mine. The video store / library example is quite right (although, Derek, video stores are not necessarily superior to library rentals; library rentals are in most instances free. And that must be good, since the music industry has told us nothing can compete with free….)
Farber’s IP list has had debate over Google Print, too, summarized on an o’reilly blog.
copyfight rounded up the coverage in the Oct. 24-ish period.
I’m enjoying gnuosphere’s blog, which I recently discovered. gnuosphere asks:
Of what use will the freedom to exercise “fair use” in the creation of an electronic database be if the deliverance of that database is controlled by software idea patents?
A lot, because the freedom to exercise ‘fair use’ is much, much broader than its single application in the Google Print project.
Siva rightly points out that there is a risk, maybe a very good one, maybe a certainty (“they will…”) that Google will use its market power to maintain its market power. That’s surely true, as I suspect it is and will be true of almost every other private for-profit enterprise in the world.
I guess I’m not sure where that point takes us, in terms of thinking about Google Print. Ought we be fighting DRM, closed algorithms, privacy invasions, abuses of monopolistic power, and the like? Yes. Does that mean we ought to fight the very creation of Google Print? No. So I am, honestly, puzzled at this critique.
Siva wonders “Why would Google allow competition? I am afraid ‘more speech’ is wishful thinking here.” But again, I’m not sure where that leaves us. If “more speech” is wishful thinking in a Google Print world, then what will we get in a no-Google Print world? Less speech and fewer indexes.
If we don’t like Google Print, and we want the law to take a hand, then we have to think of legal grounds on which to stop it. The only available grounds, as far as I can see, are copyright. Antitrust violations still seem to be only in Google’s future as far as I can tell, and wouldn’t in any case stop the database; even in the years of much stronger antitrust enforcement, we didn’t shut down technologies, just dispersed them or restricted their contractual terms. Privacy? DRM? Tort law? I don’t see any colorable claims but copyright.
Lots of virtual ink has already been spilled on that discussion, but for the record, I think Google Print ought to be fair use, and I think there’s a good chance that a court will find so. And to make an argument that fair use does not permit full-text indexing will only hurt libraries and the library digitizing projects of the future. Yes, it will also hurt for-profit value-added indexing companies like Google, Microsoft, and Yahoo!, because under such an argument, those entities will have to reach licensing agreements with copyright holders. They will do so, because they actually do, when it comes down to it, have the money to reach a licensing accord. Such a situation will not help libraries and non-profit digitizing projects.
Libraries and non-profit digitizing projects do not have the money to reach licensing accords. That will leave them with two choices: (1) Rely instead on Google, Microsoft, Yahoo!; Dialog, Lexis/Nexis, Westlaw, Ebsco, Elsevier, and other kind-hearted private companies to treat them fairly. (2) Go it on their own and push open access, full-text indexing. The kind the library community has been lobbying for, unsuccessfully, for years. Beyond lobbying, will libraries push the envelope that has been created by Amazon.com, Google, Yahoo!, Microsoft, and every other major content indexer? They absolutely will not. Fair use is determined on a case-by-case basis, by folks willing and able to litigate. Google is (maybe). Libraries aren’t.
In fact, I can state with 99.8% certainty that if fair use is abridged for the private sector, libraries will not risk litigation, and instead they will heed the advice of their conservative, cautious University general counsels and municipal legal departments — and follow in the footsteps of private entities’ approach to copyright and digitization. Because no library can afford to take on the litigation, even if ALA backs them and even if libraries are more attractive defendants than Google (or Napster).
And this has been the case for the past twenty years. Libraries (and museums, let’s not leave them out) have not led the way in digitizing copyrighted content, much as I would wish it to have been so. Librarians and their lawyers have been, reasonably, scared to death of the really crazy expansions of copyright in the last 30 years. And those expansions have stifled what librarians would have liked to have done with technology. Three examples: InterLibrary Loan (ILL); digital reserves; TV archives.
Siva also pointed out that publishers have been selling the full-text. It’s true, that in the past few years they have entered this market. Hardly full-force, by what I can see, but I have appreciated that they’ve been doing it. But Siva also says that this renders Google’s fair use claims flimsy, because they are choking off the market before it matures. I beg to disagree, for two reasons.
First, it certainly may “undermine” a market for someone to come in with a new approach; that’s called innovation. Merely undermining a market, whether developing or extant, is not a problem. It’s how you undermine it: are you taking advantage of a monopolistic position? or doing some other illegal or immoral method of undermining a market? You can argue that Google is taking advantage of a monopoly in the Gigantic Search Engine market, but Yahoo!’s efforts and the efforts of the European libraries suggest otherwise.
Second, I disagree that the market is being choked off before it matures. This market is mature. It is so mature, it is practically ancient and wizened. At least, if by “mature” you mean having willing customers. I know that University Presses have been trying to figure out how to capitalize on electronic distribution, as have other book publishers. But they’ve been having this discussion since the nineties. It’s 2005. The technology to offer text has been around since the seventies. Library catalogs, and Dialog, and others, have been buying full-text as soon as it became available. Book publishers, like music publishers in the nineties, have been too shortsighted and/or confounded by fear, anxiety and loathing to actually get the texts out there. Instead, they’ve been “experimenting” with DRM-restricted, unusable electronic books since the nineties; and in the last five years dipping their toes into very limited fulltext database sales to libraries.
Come on. Technologically speaking, how crazy is it that music has an iTunes before text? The recording industry was notoriously slow and retrograde on this issue — and they still beat the book publishers. How long do we have to wait for this market to “mature”?
Consider the Amazon.com ‘search inside the book’ example. Siva mentions in another post that “[P]ublishers fear that a market that Amazon created for them: ‘search inside the book’ licensing, will evaporate.” This isn’t how I remember the search-inside-the-book issue. I remember publishers complaining and freaking out, and the Authors Guild complaining about copyright infringement. Amazon didn’t “create a market for publishers”: Amazon forced publishers to come to the bargaining table, by threatening to do what Google is now doing wholesale. And publishers did come to the bargaining table, and did so in such a way that they and Amazon were able to come to an accord. Amazon, in the business of selling books, had an real incentive to work with publishers on this. Google, in the business of selling ads to people using a search engine, needs the publishers less, but I bet could still do business with them if the terms were right.
And the market isn’t dead even if Google rips apart each & every available title & scans it in. Because other competitors will want to come into the market, and will need to get the text themselves. Publishers have unique services they can offer as middle-agents between authors and aggregators: Publishers offer editorial and enhancement services to authors, and they can offer digitizing, formatting, and text-enhancing services to aggregators. So Yahoo!, European libraries, and other conceivable aggregators are all possible customers for publishers, even if Google takes itself out of the market. Scanning isn’t free or even cheap, and publishers already have the goods, so …