[iDC] Are We Google's Paint? Keywords?

[Soenke Zehle]

...more on Google, incl. some discussion of the settlement-agreement, Soenke

http://www.nybooks.com/articles/22281

Volume 56, Number 2 · February 12, 2009
Google & the Future of Books
By Robert Darnton

How can we navigate through the information landscape that is only
beginning to come into view? The question is more urgent than ever
following the recent settlement between Google and the authors and
publishers who were suing it for alleged breach of copyright. For the
last four years, Google has been digitizing millions of books,
including many covered by copyright, from the collections of major
research libraries, and making the texts searchable online. The
authors and publishers objected that digitizing constituted a
violation of their copyrights. After lengthy negotiations, the
plaintiffs and Google agreed on a settlement, which will have a
profound effect on the way books reach readers for the foreseeable
future. What will that future be?

No one knows, because the settlement is so complex that it is
difficult to perceive the legal and economic contours in the new lay
of the land. But those of us who are responsible for research
libraries have a clear view of a common goal: we want to open up our
collections and make them available to readers everywhere. How to get
there? The only workable tactic may be vigilance: see as far ahead as
you can; and while you keep your eye on the road, remember to look in
the rearview mirror.

When I look backward, I fix my gaze on the eighteenth century, the
Enlightenment, its faith in the power of knowledge, and the world of
ideas in which it operated—what the enlightened referred to as the
Republic of Letters.
NYR David Levine Calendar

The eighteenth century imagined the Republic of Letters as a realm
with no police, no boundaries, and no inequalities other than those
determined by talent. Anyone could join it by exercising the two main
attributes of citizenship, writing and reading. Writers formulated
ideas, and readers judged them. Thanks to the power of the printed
word, the judgments spread in widening circles, and the strongest
arguments won.

The word also spread by written letters, for the eighteenth century
was a great era of epistolary exchange. Read through the
correspondence of Voltaire, Rousseau, Franklin, and Jefferson—each
filling about fifty volumes—and you can watch the Republic of Letters
in operation. All four writers debated all the issues of their day in
a steady stream of letters, which crisscrossed Europe and America in a
transatlantic information network.

I especially enjoy the exchange of letters between Jefferson and
Madison. They discussed everything, notably the American Constitution,
which Madison was helping to write in Philadelphia while Jefferson was
representing the new republic in Paris. They often wrote about books,
for Jefferson loved to haunt the bookshops in the capital of the
Republic of Letters, and he frequently bought books for his friend.
The purchases included Diderot's Encyclopédie, which Jefferson thought
that he had got at a bargain price, although he had mistaken a reprint
for a first edition.

Two future presidents discussing books through the information network
of the Enlightenment—it's a stirring sight. But before this picture of
the past fogs over with sentiment, I should add that the Republic of
Letters was democratic only in principle. In practice, it was
dominated by the wellborn and the rich. Far from being able to live
from their pens, most writers had to court patrons, solicit sinecures,
lobby for appointments to state-controlled journals, dodge censors,
and wangle their way into salons and academies, where reputations were
made. While suffering indignities at the hands of their social
superiors, they turned on one another. The quarrel between Voltaire
and Rousseau illustrates their temper. After reading Rousseau's
Discourse on the Origins of Inequality in 1755, Voltaire wrote to him,
"I have received, Monsieur, your new book against the human race....
It makes one desire to go down on all fours." Five years later,
Rousseau wrote to Voltaire. "Monsieur,...I hate you."

The personal conflicts were compounded by social distinctions. Far
from functioning like an egalitarian agora, the Republic of Letters
suffered from the same disease that ate through all societies in the
eighteenth century: privilege. Privileges were not limited to
aristocrats. In France, they applied to everything in the world of
letters, including printing and the book trade, which were dominated
by exclusive guilds, and the books themselves, which could not appear
legally without a royal privilege and a censor's approbation, printed
in full in their text.

One way to understand this system is to draw on the sociology of
knowledge, notably Pierre Bourdieu's notion of literature as a power
field composed of contending positions within the rules of a game that
itself is subordinate to the dominating forces of society at large.
But one needn't subscribe to Bourdieu's school of sociology in order
to acknowledge the connections between literature and power. Seen from
the perspective of the players, the realities of literary life
contradicted the lofty ideals of the Enlightenment. Despite its
principles, the Republic of Letters, as it actually operated, was a
closed world, inaccessible to the underprivileged. Yet I want to
invoke the Enlightenment in an argument for openness in general and
for open access in particular.

If we turn from the eighteenth century to the present, do we see a
similar contradiction between principle and practice—right here in the
world of research libraries? One of my colleagues is a quiet,
diminutive lady, who might call up the notion of Marion the Librarian.
When she meets people at parties and identifies herself, they
sometimes say condescendingly, "A librarian, how nice. Tell me, what
is it like to be a librarian?" She replies, "Essentially, it is all
about money and power."

We are back with Pierre Bourdieu. Yet most of us would subscribe to
the principles inscribed in prominent places in our public libraries.
"Free To All," it says above the main entrance to the Boston Public
Library; and in the words of Thomas Jefferson, carved in gold letters
on the wall of the Trustees' Room of the New York Public Library: "I
look to the diffusion of light and education as the resource most to
be relied on for ameliorating the condition promoting the virtue and
advancing the happiness of man." We are back with the Enlightenment.

Our republic was founded on faith in the central principle of the
eighteenth-century Republic of Letters: the diffusion of light. For
Jefferson, enlightenment took place by means of writers and readers,
books and libraries—especially libraries, at Monticello, the
University of Virginia, and the Library of Congress. This faith is
embodied in the United States Constitution. Article 1, Section 8,
establishes copyright and patents "for limited times" only and subject
to the higher purpose of promoting "the progress of science and useful
arts." The Founding Fathers acknowledged authors' rights to a fair
return on their intellectual labor, but they put public welfare before
private profit.

How to calculate the relative importance of those two values? As the
authors of the Constitution knew, copyright was created in Great
Britain by the Statute of Anne in 1710 for the purpose of curbing the
monopolistic practices of the London Stationers' Company and also, as
its title proclaimed, "for the encouragement of learning." At that
time, Parliament set the length of copyright at fourteen years,
renewable only once. The Stationers attempted to defend their monopoly
of publishing and the book trade by arguing for perpetual copyright in
a long series of court cases. But they lost in the definitive ruling
of Donaldson v. Becket in 1774.

When the Americans gathered to draft a constitution thirteen years
later, they generally favored the view that had predominated in
Britain. Twenty-eight years seemed long enough to protect the
interests of authors and publishers. Beyond that limit, the interest
of the public should prevail. In 1790, the first copyright act—also
dedicated to "the encouragement of learning"—followed British practice
by adopting a limit of fourteen years renewable for another fourteen.

How long does copyright extend today? According to the Sonny Bono
Copyright Term Extension Act of 1998 (also known as "the Mickey Mouse
Protection Act," because Mickey was about to fall into the public
domain), it lasts as long as the life of the author plus seventy
years. In practice, that normally would mean more than a century. Most
books published in the twentieth century have not yet entered the
public domain. When it comes to digitization, access to our cultural
heritage generally ends on January 1, 1923, the date from which great
numbers of books are subject to copyright laws. It will remain
there—unless private interests take over the digitizing, package it
for consumers, tie the packages up by means of legal deals, and sell
them for the profit of the shareholders. As things stand now, for
example, Sinclair Lewis's Babbitt, published in 1922, is in the public
domain, whereas Lewis's Elmer Gantry, published in 1927, will not
enter the public domain until 2022.[1]

To descend from the high principles of the Founding Fathers to the
practices of the cultural industries today is to leave the realm of
Enlightenment for the hurly-burly of corporate capitalism. If we
turned the sociology of knowledge onto the present—as Bourdieu himself
did—we would see that we live in a world designed by Mickey Mouse, red
in tooth and claw.

Does this kind of reality check make the principles of Enlightenment
look like a historical fantasy? Let's reconsider the history. As the
Enlightenment faded in the early nineteenth century,
professionalization set in. You can follow the process by comparing
the Encyclopédie of Diderot, which organized knowledge into an organic
whole dominated by the faculty of reason, with its successor from the
end of the eighteenth century, the Encyclopédie méthodique, which
divided knowledge into fields that we can recognize today: chemistry,
physics, history, mathematics, and the rest. In the nineteenth
century, those fields turned into professions, certified by Ph.D.s and
guarded by professional associations. They metamorphosed into
departments of universities, and by the twentieth century they had
left their mark on campuses—chemistry housed in this building, physics
in that one, history here, mathematics there, and at the center of it
all, a library, usually designed to look like a temple of learning.

Along the way, professional journals sprouted throughout the fields,
subfields, and sub-subfields. The learned societies produced them, and
the libraries bought them. This system worked well for about a hundred
years. Then commercial publishers discovered that they could make a
fortune by selling subscriptions to the journals. Once a university
library subscribed, the students and professors came to expect an
uninterrupted flow of issues. The price could be ratcheted up without
causing cancellations, because the libraries paid for the
subscriptions and the professors did not. Best of all, the professors
provided free or nearly free labor. They wrote the articles, refereed
submissions, and served on editorial boards, partly to spread
knowledge in the Enlightenment fashion, but mainly to advance their
own careers.

The result stands out on the acquisitions budget of every research
library: the Journal of Comparative Neurology now costs $25,910 for a
year's subscription; Tetrahedron costs $17,969 (or $39,739, if bundled
with related publications as a Tetrahedron package); the average price
of a chemistry journal is $3,490; and the ripple effects have damaged
intellectual life throughout the world of learning. Owing to the
skyrocketing cost of serials, libraries that used to spend 50 percent
of their acquisitions budget on monographs now spend 25 percent or
less. University presses, which depend on sales to libraries, cannot
cover their costs by publishing monographs. And young scholars who
depend on publishing to advance their careers are now in danger of
perishing.

Fortunately, this picture of the hard facts of life in the world of
learning is already going out of date. Biologists, chemists, and
physicists no longer live in separate worlds; nor do historians,
anthropologists, and literary scholars. The old map of the campus no
longer corresponds to the activities of the professors and students.
It is being redrawn everywhere, and in many places the
interdisciplinary designs are turning into structures. The library
remains at the heart of things, but it pumps nutrition throughout the
university, and often to the farthest reaches of cyberspace, by means
of electronic networks.

The eighteenth-century Republic of Letters had been transformed into a
professional Republic of Learning, and it is now open to
amateurs—amateurs in the best sense of the word, lovers of learning
among the general citizenry. Openness is operating everywhere, thanks
to "open access" repositories of digitized articles available free of
charge, the Open Content Alliance, the Open Knowledge Commons,
OpenCourseWare, the Internet Archive, and openly amateur enterprises
like Wikipedia. The democratization of knowledge now seems to be at
our fingertips. We can make the Enlightenment ideal come to life in
reality.

At this point, you may suspect that I have swung from one American
genre, the jeremiad, to another, utopian enthusiasm. It might be
possible, I suppose, for the two to work together as a dialectic, were
it not for the danger of commercialization. When businesses like
Google look at libraries, they do not merely see temples of learning.
They see potential assets or what they call "content," ready to be
mined. Built up over centuries at an enormous expenditure of money and
labor, library collections can be digitized en masse at relatively
little cost—millions of dollars, certainly, but little compared to the
investment that went into them.

Libraries exist to promote a public good: "the encouragement of
learning," learning "Free To All." Businesses exist in order to make
money for their shareholders—and a good thing, too, for the public
good depends on a profitable economy. Yet if we permit the
commercialization of the content of our libraries, there is no getting
around a fundamental contradiction. To digitize collections and sell
the product in ways that fail to guarantee wide access would be to
repeat the mistake that was made when publishers exploited the market
for scholarly journals, but on a much greater scale, for it would turn
the Internet into an instrument for privatizing knowledge that belongs
in the public sphere. No invisible hand would intervene to correct the
imbalance between the private and the public welfare. Only the public
can do that, but who speaks for the public? Not the legislators of the
Mickey Mouse Protection Act.

You cannot legislate Enlightenment, but you can set rules of the game
to protect the public interest. Libraries represent the public good.
They are not businesses, but they must cover their costs. They need a
business plan. Think of the old motto of Con Edison when it had to
tear up New York's streets in order to get at the infrastructure
beneath them: "Dig we must." Libraries say, "Digitize we must." But
not on any terms. We must do it in the interest of the public, and
that means holding the digitizers responsible to the citizenry.

It would be naive to identify the Internet with the Enlightenment. It
has the potential to diffuse knowledge beyond anything imagined by
Jefferson; but while it was being constructed, link by hyperlink,
commercial interests did not sit idly on the sidelines. They want to
control the game, to take it over, to own it. They compete among
themselves, of course, but so ferociously that they kill each other
off. Their struggle for survival is leading toward an oligopoly; and
whoever may win, the victory could mean a defeat for the public good.

Don't get me wrong. I know that businesses must be responsible to
shareholders. I believe that authors are entitled to payment for their
creative labor and that publishers deserve to make money from the
value they add to the texts supplied by authors. I admire the wizardry
of hardware, software, search engines, digitization, and algorithmic
relevance ranking. I acknowledge the importance of copyright, although
I think that Congress got it better in 1790 than in 1998.

But we, too, cannot sit on the sidelines, as if the market forces can
be trusted to operate for the public good. We need to get engaged, to
mix it up, and to win back the public's rightful domain. When I say
"we," I mean we the people, we who created the Constitution and who
should make the Enlightenment principles behind it inform the everyday
realities of the information society. Yes, we must digitize. But more
important, we must democratize. We must open access to our cultural
heritage. How? By rewriting the rules of the game, by subordinating
private interests to the public good, and by taking inspiration from
the early republic in order to create a Digital Republic of Learning.

What provoked these jeremianic- utopian reflections? Google. Four
years ago, Google began digitizing books from research libraries,
providing full-text searching and making books in the public domain
available on the Internet at no cost to the viewer. For example, it is
now possible for anyone, anywhere to view and download a digital copy
of the 1871 first edition of Middlemarch that is in the collection of
the Bodleian Library at Oxford. Everyone profited, including Google,
which collected revenue from some discreet advertising attached to the
service, Google Book Search. Google also digitized an ever-increasing
number of library books that were protected by copyright in order to
provide search services that displayed small snippets of the text. In
September and October 2005, a group of authors and publishers brought
a class action suit against Google, alleging violation of copyright.
Last October 28, after lengthy negotiations, the opposing parties
announced agreement on a settlement, which is subject to approval by
the US District Court for the Southern District of New York.[2]

The settlement creates an enterprise known as the Book Rights Registry
to represent the interests of the copyright holders. Google will sell
access to a gigantic data bank composed primarily of copyrighted,
out-of-print books digitized from the research libraries. Colleges,
universities, and other organizations will be able to subscribe by
paying for an "institutional license" providing access to the data
bank. A "public access license" will make this material available to
public libraries, where Google will provide free viewing of the
digitized books on one computer terminal. And individuals also will be
able to access and print out digitized versions of the books by
purchasing a "consumer license" from Google, which will cooperate with
the registry for the distribution of all the revenue to copyright
holders. Google will retain 37 percent, and the registry will
distribute 63 percent among the rightsholders.

Meanwhile, Google will continue to make books in the public domain
available for users to read, download, and print, free of charge. Of
the seven million books that Google reportedly had digitized by
November 2008, one million are works in the public domain; one million
are in copyright and in print; and five million are in copyright but
out of print. It is this last category that will furnish the bulk of
the books to be made available through the institutional license.

Many of the in-copyright and in-print books will not be available in
the data bank unless the copyright owners opt to include them. They
will continue to be sold in the normal fashion as printed books and
also could be marketed to individual customers as digitized copies,
accessible through the consumer license for downloading and reading,
perhaps eventually on e-book readers such as Amazon's Kindle.

After reading the settlement and letting its terms sink in—no easy
task, as it runs to 134 pages and 15 appendices of legalese—one is
likely to be dumbfounded: here is a proposal that could result in the
world's largest library. It would, to be sure, be a digital library,
but it could dwarf the Library of Congress and all the national
libraries of Europe. Moreover, in pursuing the terms of the settlement
with the authors and publishers, Google could also become the world's
largest book business—not a chain of stores but an electronic supply
service that could out-Amazon Amazon.

An enterprise on such a scale is bound to elicit reactions of the two
kinds that I have been discussing: on the one hand, utopian
enthusiasm; on the other, jeremiads about the danger of concentrating
power to control access to information.

Who could not be moved by the prospect of bringing virtually all the
books from America's greatest research libraries within the reach of
all Americans, and perhaps eventually to everyone in the world with
access to the Internet? Not only will Google's technological wizardry
bring books to readers, it will also open up extraordinary
opportunities for research, a whole gamut of possibilities from
straightforward word searches to complex text mining. Under certain
conditions, the participating libraries will be able to use the
digitized copies of their books to create replacements for books that
have been damaged or lost. Google will engineer the texts in ways to
help readers with disabilities.

Unfortunately, Google's commitment to provide free access to its
database on one terminal in every public library is hedged with
restrictions: readers will not be able to print out any copyrighted
text without paying a fee to the copyright holders (though Google has
offered to pay them at the outset); and a single terminal will hardly
satisfy the demand in large libraries. But Google's generosity will be
a boon to the small-town, Carnegie-library readers, who will have
access to more books than are currently available in the New York
Public Library. Google can make the Enlightenment dream come true.

But will it? The eighteenth-century philosophers saw monopoly as a
main obstacle to the diffusion of knowledge —not merely monopolies in
general, which stifled trade according to Adam Smith and the
Physiocrats, but specific monopolies such as the Stationers' Company
in London and the booksellers' guild in Paris, which choked off free
trade in books.

Google is not a guild, and it did not set out to create a monopoly. On
the contrary, it has pursued a laudable goal: promoting access to
information. But the class action character of the settlement makes
Google invulnerable to competition. Most book authors and publishers
who own US copyrights are automatically covered by the settlement.
They can opt out of it; but whatever they do, no new digitizing
enterprise can get off the ground without winning their assent one by
one, a practical impossibility, or without becoming mired down in
another class action suit. If approved by the court—a process that
could take as much as two years—the settlement will give Google
control over the digitizing of virtually all books covered by
copyright in the United States.

This outcome was not anticipated at the outset. Looking back over the
course of digitization from the 1990s, we now can see that we missed a
great opportunity. Action by Congress and the Library of Congress or a
grand alliance of research libraries supported by a coalition of
foundations could have done the job at a feasible cost and designed it
in a manner that would have put the public interest first. By
spreading the cost in various ways—a rental based on the amount of use
of a database or a budget line in the National Endowment for the
Humanities or the Library of Congress—we could have provided authors
and publishers with a legitimate income, while maintaining an open
access repository or one in which access was based on reasonable fees.
We could have created a National Digital Library—the
twenty-first-century equivalent of the Library of Alexandria. It is
too late now. Not only have we failed to realize that possibility,
but, even worse, we are allowing a question of public policy—the
control of access to information—to be determined by private lawsuit.

While the public authorities slept, Google took the initiative. It did
not seek to settle its affairs in court. It went about its business,
scanning books in libraries; and it scanned them so effectively as to
arouse the appetite of others for a share in the potential profits. No
one should dispute the claim of authors and publishers to income from
rights that properly belong to them; nor should anyone presume to pass
quick judgment on the contending parties of the lawsuit. 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.

As an unintended consequence, 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 leaves Google free
to negotiate deals with each of its clients, although it announces two
guiding principles: "(1) the realization of revenue at market rates
for each Book and license on behalf of the Rightsholders and (2) the
realization of broad access to the Books by the public, including
institutions of higher education."

What will happen if Google favors profitability over access? Nothing,
if I read the terms of the settlement correctly. Only the registry,
acting for the copyright holders, has the power to force a change in
the subscription prices charged by Google, and there is no reason to
expect the registry to object if the prices are too high. Google may
choose to be generous in it pricing, and I have reason to hope it may
do so; but it could also employ a strategy comparable to the one that
proved to be so effective in pushing up the price of scholarly
journals: first, entice subscribers with low initial rates, and then,
once they are hooked, ratchet up the rates as high as the traffic will
bear.

Free-market advocates may argue that the market will correct itself.
If Google charges too much, customers will cancel their subscriptions,
and the price will drop. But there is no direct connection between
supply and demand in the mechanism for the institutional licenses
envisioned by the settlement. Students, faculty, and patrons of public
libraries will not pay for the subscriptions. The payment will come
from the libraries; and if the libraries fail to find enough money for
the subscription renewals, they may arouse ferocious protests from
readers who have become accustomed to Google's service. In the face of
the protests, the libraries probably will cut back on other services,
including the acquisition of books, just as they did when publishers
ratcheted up the price of periodicals.

No one can predict what will happen. We can only read the terms of the
settlement and guess about the future. If Google makes available, at a
reasonable price, the combined holdings of all the major US libraries,
who would not applaud? Would we not prefer a world in which this
immense corpus of digitized books is accessible, even at a high price,
to one in which it did not exist?

Perhaps, but 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.

Whether or not I have understood the settlement correctly, its terms
are locked together so tightly that they cannot be pried apart. At
this point, neither Google, nor the authors, nor the publishers, nor
the district court is likely to modify the settlement substantially.
Yet this is also a tipping point in the development of what we call
the information society. If we get the balance wrong at this moment,
private interests may outweigh the public good for the foreseeable
future, and the Enlightenment dream may be as elusive as ever.
Notes

[1]The Copyright Term Extension Act of 1998 retroactively lengthened
copyright by twenty years for books copyrighted after January 1, 1923.
Unfortunately, the copyright status of books published in the
twentieth century is complicated by legislation that has extended
copyright eleven times during the last fifty years. Until a
congressional act of 1992, rightsholders had to renew their
copyrights. The 1992 act removed that requirement for books published
between 1964 and 1977, when, according to the Copyright Act of 1976,
their copyrights would last for the author's life plus fifty years.
The act of 1998 extended that protection to the author's life plus
seventy years. Therefore, all books published after 1963 remain in
copyright, and an unknown number—unknown owing to inadequate
information about the deaths of authors and the owners of
copyright—published between 1923 and 1964 are also protected by
copyright. See Paul A. David and Jared Rubin, "Restricting Access to
Books on the Internet: Some Unanticipated Effects of U.S. Copyright
Legislation," Review of Economic Research on Copyright Issues, Vol. 5,
No. 1 (2008).

[2]The full text of the settlement can be found at
www.googlebooksettlement.com/agreement.html. For Google's legal notice
concerning the settlement, see page 35 of this issue of The New York
Review