Copy and Print

As a mem­ber of both the New York Library and Cre­ative Com­mons, I received a lot of advance notice about this week’s dis­cus­sion enti­tled “The Bat­tle Over Books: Authors and Pub­lish­ers Take on the Google Print Library Project”. And, thanks to Larry Lessig, I got a chance to be in the audi­ence dur­ing this match-up which forced me to reshape my think­ing about Google, about Web 2.0, and about copy­right regimes.

Fram­ing the debate

The dis­cus­sion cen­tered largely around the Google Print Library Project and Google’s deci­sion to scan books with­out first ask­ing for autho­riza­tion from the copy­right hold­ers. They do con­tent, how­ever, that they will remove books from their index if the copy­right holder asks them to do so. In the last few months, the Author’s Guild and the Amer­i­can Asso­ci­a­tion of Pub­lish­ers have sued Google, alleg­ing vio­la­tions of copy­right law.

Mean­while, a sep­a­rate effort set up by some of Google’s com­peti­tors (notably Yahoo! and Microsoft) and called the Open Con­tent Alliance has taken an opt-in approach to scan­ning copy­right hold­ings, includ­ing only con­tent that is no longer under copy­right pro­tec­tion or con­tent that has been expressly autho­rized by the copy­right holder. This effort has not been sued by the two groups.

Pri­vate vs. Public

What is inter­est­ing here is that much of the debate really cen­ters around an issue of pub­lic vs. pri­vate. Google is really cre­at­ing a pri­vate hold­ing out of con­tent ini­tially cre­ated by other peo­ple. While I ini­tially was on the site of Google when I first heard about this debate, I am start­ing to won­der whether their posi­tion is cor­rect. While it is a good thing that Google gives access to a way to search con­tent which was not pre­vi­ously search­able, why is it OK for Google to not share that con­tent with oth­ers? Why is it that they are not join­ing the Open Con­tent Alliance and shar­ing access to con­tent they have cre­ated? Why is it that they are cre­at­ing a walled gar­den around con­tent they did not cre­ate and only allow inter­ac­tion with that con­tent through Google? Those are ques­tions that Google has not answered and need to be answered if we are to trust the company’s unof­fi­cial “Don’t be evil” motto.

How­ever, this is an issue that goes far beyond books when you start think­ing about it. Google has largely been build­ing a rep­u­ta­tion based on its abil­ity to search var­i­ous types of data, assum­ing that the copy­right hold­ers were allow­ing them to do so. I first looked into that issue about 5 years ago Deja News put out the “For Sale” sign, which was even­tu­ally picked up by Google. What is inter­est­ing is that Google needs data. With­out it, Google is use­less: the value of a search engine is related to how many assets it holds and how well it can orga­nize them. This is why size does mat­ter even though some now try to claim it no longer does.

I would go as far as extrap­o­late that this is the biggest dilemma for most web 2.0 com­pa­nies: as more and more of them rely on sys­tem where the data is almost as impor­tant as how one inter­acts with it, they are found starv­ing for data. How­ever, they have to bal­ance that with the ideal of being more trans­par­ent and share that data with other enti­ties. The dilemma then becomes how to keep a pri­vate set of data in the pub­lic eye while keep­ing the pub­lic from steal­ing and/or mis­us­ing your pri­vate data.

I asked the pan­elists whether the issue was that Google was turn­ing the author’s data into pri­vate Google prop­erty and whether Google join­ing the Open Con­tent Alliance would solve the prob­lem. David Drum­mond, who was there rep­re­sent­ing Google did not answer the ques­tion. Allan Adler, from the Asso­ci­a­tion of Amer­i­can Pub­lish­ers, stated that they would drop their objec­tions (and thus poten­tially their law­suit) if Google were to fol­low the estab­lished prin­ci­ples of the Open Con­tent Alliance. In order to deci­pher that state­ment, I went back to the OCA’s web­site and looked for what those prin­ci­ples were. They are are follows:

• The OCA will encour­age the great­est pos­si­ble degree of access to and reuse of col­lec­tions in the archive, while respect­ing the rights of con­tent own­ers and contributors.
• Con­trib­u­tors will deter­mine the terms and con­di­tions under which their col­lec­tions are dis­trib­uted and how attri­bu­tion should be made.
• The OCA need not be oblig­ated to accept all con­tent that is offered to it and may give pref­er­ence to that which can be made widely accessible.
• The OCA will offer col­lec­tion and item-level meta­data of its hosted col­lec­tions in a vari­ety of formats.
• The OCA wel­comes efforts to cre­ate and offer tools (includ­ing find­ing aids, cat­a­logs, and indexes) that will enhance the usabil­ity of the mate­ri­als in the archive.
• Copies of the OCA col­lec­tions will reside in mul­ti­ple archives inter­na­tion­ally to ensure their long-term preser­va­tion and acces­si­bil­ity to all.

The last few words (“and acces­si­bil­ity to all”) are par­tic­u­larly inter­est­ing. These, I believe, may be a large part of the rea­son Google is not going to join the OCA.

In a way, Google is appro­pri­at­ing other people’s work (the actual con­tent of the books) and cre­at­ing a pri­vate prop­erty around it. Had Google cre­ated the con­tent or pro­vided the tools to do so, they might have a claim to being part of the cre­ation. How­ever, it seems that, in scan­ning the con­tent, they are appro­pri­at­ing con­tent which is not right­fully theirs with­out first ask­ing for author­ity to do so. That can’t be right.

What price for those rights?

It is inter­est­ing that Google has wrapped its argu­ment around the Fair Use doc­trine as the copy­right office seems to clearly state that one of the fac­tors to con­sider is

the amount and sub­stan­tial­ity of the por­tion used in rela­tion to the copy­righted work as a whole

The rea­son that is inter­est­ing is that it points to an issue in terms of whether they are infring­ing or not. Con­sid­er­ing the fact that they do have to copy the works in full in order to be suc­cess­ful in their under­tak­ing, it seems that they would indeed be in infringe­ment under a strict read­ing of that sec­tion of Copy­right law.

One of the items that were over­looked by most of the media cov­er­age is the ques­tion of price for the rights. Larry Lessig, dur­ing an exchange with Nick Tay­lor, of the Authors Guild, stated that he feared that the Author’s Guild and the Asso­ci­a­tion of Amer­i­can Pub­lish­ers would even­tu­ally set­tle their law­suit with Google. This fear is well grounded when one real­izes that the major­ity of law­suits are set­tled out of court but it gains extra weight if there is a poten­tial that Google will lose. To under­stand Lessig’s fears, how­ever, one has to go one step fur­ther and start look­ing into the effect of such a set­tle­ment. First of all, Google is rich (as of this writ­ing, Google had a mar­ket cap­i­tal­iza­tion sit­ting north of $100 bil­lion); There is noth­ing wrong with that, except for the fact that they can pay a lot more than other com­pa­nies could. If they were to set­tle with the authors and pub­lish­ers for a lot of money (which is what the receiv­ing par­ties will be push­ing for), they will cre­ate a prece­dent whereby rights that pre­vi­ously were avail­able for free will now have a fairly hefty price tag.

This is not only bad for peo­ple try­ing to develop new busi­nesses to com­pete with Google but has a poten­tial for being bad for democ­racy in gen­eral as it might cre­ate two dif­fer­ent groups in a soci­ety: those who can pay for access to cer­tain con­tent and those who can’t. In the long run, that sounds like a pretty evil thing to me and this is, once again, where the need for a sys­tem that is acces­si­ble to all and col­lec­tions that reside in mul­ti­ple archives are an impor­tant pre-requisite. If the authors and pub­lish­ers are seri­ous about being remu­ner­ated for their work, they are going to have to play this one for the long run. What it means is that set­tling is not an option! They must see this case all the way through to the Supreme Court of the United States. The rea­son this is nec­es­sary is that, if they set­tle, they change the nego­ti­a­tion from one where they are of equal weight to an asym­met­ric one where Google has all the power (because it keeps the access locked down). In the future, Google could decide what and when those authors and pub­lish­ers have a say in that rela­tion­ship. This is very dan­ger­ous. In a way, the rela­tion­ship is one that fits a prisoner’s dilemma scheme nicely, show­ing that the only solu­tion is to keep fighting:

It is inter­est­ing to see that there is really no room but to fight. In a weird way, Google has become its own anti-thesis, being evil as a direct result of its own actions. Because, in order to pro­tect its own eco­nomic inter­est, it must keep a walled gar­den, Google is stuck in a posi­tion where it will have to nego­ti­ate rights or lose the right to go after print. From the Google stand­point, the deci­sion is to get one party to set­tle and lever­age that into a posi­tion of strength to force the other party to set­tle. Once a set­tle­ment has been accom­plished with both par­ties, how­ever, Google will have estab­lished a price tags on rights. Because of that price tags, many par­ties (whether indi­vid­u­als or com­pa­nies) will no longer be able to play in that space. Many could debate whether this is inten­tion­ally evil or not but few can deny that it cre­ates an evil state of affairs.

And what about CC?

A lot of this dis­cus­sion, of course, can­not hap­pen with­out tak­ing into Cre­ative Com­mons into account. I was sur­prised that Lessig was not mak­ing more of a case for the CC license to the pub­lish­ers and authors. How­ever, it was inter­est­ing to see him grilling Allan Adler on what con­sti­tuted fair rights. Adler took a very eva­sive approach to dodge the ques­tion, leav­ing it absolutely unan­swered. It is, how­ever, an impor­tant ques­tion that needs to be dealt with if any res­o­lu­tion is to come.

One of the pos­si­ble com­pro­mise would be for Google to agree they will no longer force an opt out model in exchange for a blan­ket endorse­ment of CC by the pub­lish­ers and authors. Because CC licenses has a num­ber of vari­ables, it might allow some speed­ing up of the process in terms of will­ing to grant rights. This would also greatly ben­e­fit the Open Con­tent Alliance project and thus ensure that con­tent is widely shared and dis­trib­uted while allow­ing con­tent authors and pub­lish­ers some level of con­trol over what rights they would give away. The funny thing is that this may, in the end, be the only way out of the mess Google has cre­ated and that no one else seems to have sug­gested it.