A federal judge has ruled that Google’s ambitious attempt to digitize all books, including those for which the copyright holders cannot be found, cannot go forward as planned. That’s great news. It will prevent Google from claiming a de facto monopoly over millions of “orphan works” whose copyright holders cannot be found. The company will not be able to charge exorbitant prices for access to books that ought to be free or at-cost.
Even better, the rejection of Google’s plan means that the nation’s libraries and research institutions can now entertain the idea of building their own repository of digitized books. It can be a real commons, and not a “free” proprietary platform that would come with all sorts of strings attached.
Robert Darnton, the director of the Harvard University Library, makes these points in a terrific oped piece in the NYT today. After detailing why Google’s book project deserved to be rejected, Darnton asks: Why not build a digital library better than Google’s? Let’s build “a vast collection of resources that can be tapped, free of charge, by anyone, anywhere, at any time,” he writes.
Judge Denny Chin rejected the copyright settlement that Google had negotiated with the Author’s Guild and the Association of American publishers because it would have applied to all authors, not just the 8,000 represented by the Author’s Guild. The settlement would have automatically authorized Google’s digitization of orphan works, effectively precluding any other company or institution from providing access to them. The copyright holders would have no say in opting into or out of the plan. By default, the settlement would have dictated public policy for orphan works and the digitization of books. That’s something that Congress should decide, not Google and two trade associations.
So now the ball is passed to Congress, which should move forward with orphan works legislation to authorize the non-commercial use of works whose copyright owners cannot be located. The could enable others to proceed to digitize orphan works and give them a new life in our culture. Better yet, Congress should appropriate money for a digital public library to be launched.
Give Google some credit. It had shrewdly marched into a void. It had the vision and sheer resources to imagine the digitization of every book ever published. Unfortunately, many people bought into the seductive the idea the Google book project would give us something for nothing. It appealed to people’s fantasies that the private and public interest could be brought into a happy, win-win alignment. Why spend money on the public digitization of books when Google will do the same thing for free?
The only problem is, Google’s repository would not have been free. It alone would have held the rights to the digitized orphan works, and it would have controlled the terms of access to that vast repository. Google is a business, after all, and holding a monopoly over digitized access to our cultural heritage and to their commercial use would be lucrative indeed.
A digital public library is something quite different. A library's holdings are freely accessible to anyone in perpetuity. All sorts of derivative formatting and uses of the content are possible. The works can be shared, for free, and even sold (as print-on-demand volumes) without having to ask permission.
It is a sign of our times that the world of foundations and research libraries were not able to come up with a collaborative digital books project that could compete with Google’s. It's a colossol tragedy because a commons-based plan could benefit every participating institution, its patrons, the public at large and all of posterity, all for a fraction of the aggregate prices that Google would eventually have charged. The real problem for the idea of a digital public library, of course, is amassing the upfront capital in the first place and finding the leadership.
In times past, Congress would spring for the money (the cost of one fighter jet would do) or perhaps provide legal assistance or in-kind help, via the Library of Congress. But in today’s corrupted political culture, only privatized solutions are seen as credible, and cooperative public ventures are denigrated as too expensive. The irony is that the private “solutions” tend to be the real ripoff (monopoly control over our cultural commons, predatory pricing, access only for those with money) while the latter is the more economical, innovation-friendly, socially just approach (lower total costs, access for all, untold spillover benefits from free access).
I see the next few months as a key test for the nation’s major foundations and universities. Can they show the leadership and commitment to find some means to secure the blessings of the public domain of books for us and our posterity, as Harvard librarian Darnton urges? Or will they acquiesce to the private sector, letting corporations with very different priorities and goals deliver a highly compromised, market-driven facsimile of the common good?