And it’s already begun. To get back to planet Earth, Google has now restricted the downloading of a number of PD journal titles.

If the content is truly in the public domain, then anyone can do anything they want with it — including limiting the number of downloaded copies or how the content is viewed online. In other words, there is nothing preventing you from digitizing the content on your own dime, creating the server infrastructure, and buying the bandwidth necessary to serve it to the world. I’m sure any number of institutions would like to chat with you if you were willing to put in that kind of effort.

Let’s keep some perspective here, okay?

And it’s already begun. To get back to planet Earth, Google has now restricted the downloading of a number of PD journal titles. It’s view-only for these guys– they even claim that the copyright holders have “granted permission” for us to view their full scans! This is disingenuous, of course, but it’s where they are at with this Book scheme. It will only get worse, too.

My concerns are with this privatization of access. I’m not worried about Harvard or UCLA students getting their books, I’m worried about the public at large, who will very quickly be seeing their collections weeded of Google “duplicates” and their only alternative the Google machine.

The worst thing right now is that the negotiated Settlement has already blown any possibility of liberating orphan works from onerous copyright restrictions, because they want to essentially place these works back into print, Google style. It’s no coincidence that the Settlement only mentions orphan works three times in its 100+ pages. That’s because their fate will be a profitable one for Google and Google alone. But it’s very bad public policy, even if it is a nice private gain also for whoever operates those vending machines and the few orphan rightsholders who come out of the woodwork. At the very least, there shouldn’t be a dispute that the Agreement at least puts under private control all orphan works. That’s bad enough.

well, walt, i guess you responded
as politely as possible… ;+)

if this “settlement” is approved,
10 years down the line, it will be
impossible to miss how it was
a terrible mistake for us to make.

and nobody will be debating
the semantics of “monopoly”
at that time…

just you watch and see…

-bowerbird

But the problem with the Google “vending machine” idea goes way beyond public domain works. If libraries can sell copies of copyrighted OOP works, then they will have a great incentive to toss out many older books that aren’t PD. I’m not worried about Harvard, I’m worried about large public libraries.

BTW, it’s true that there’s nothing in the Agreement regarding public domain works– those are controlled by Google’s separate agreements with the contributing libraries. But in the UC agreement at least, there is no requirement that Google allow free downloads of PD materials– it’s view only. Downloading is completely discretionary on the part of Google, and if libraries have Google vending machines, how much incentive do they all have to keep giving away their PD corpus for free? Not much.

Most people don’t know this– they take it as a given that Google will always provide free downloads of PD works. But there is no basis for this faith.

So far the discussion has revolved around abstract notions of privatization in regards to scanning and acquisition. But what I’m talking about is Google locking up the books for profit. That’s privatization front and center, and it can easily happen.

Given that assumption, what prevented us from doing that? Three things: the concentration and expense of the delivery technology (the Web); the expense of scanning, indexing, maintaining, and supporting the collection (what Google is doing but libraries should have been doing); and changing copyright law to facilitate this scanning under the right conditions.

The first challenge took care of itself for most of the United States and Europe — mostly through libraries. But we still have a long way to go with the rest of the world.

The second challenge is being met (poorly, I would say) by Google boldly reaching out and doing it. Whether libraries should have given away their riches to Google was the subject of most of the debate within the library community before the settlement.

That third challenge is a doozy. Congress should have decided this issue. I firmly believe that if we want something in this country we should petition the legislature and launch a political movement toward that end. Going to courts to solve the problem is unhealthy and risky. This was one of my main criticisms of the Google project before the settlement.

Now, if the settlement prevails, we will see a radical change in the law. Private law is being used to shape public policy over one of the most precious aspects of republican ideology: the incentive system we rely on to fill the public domain with rich texts. This settlement establishes one company as the sole arbiter of a compulsory license over millions of books. It does so through the class-action process. It would establish an elaborate system not unlike ASCAP or BMI, but without the legislative scrutiny, deliberation, and specific exemption from antitrust.

This is too important to be left to the discretion of one search engine company, a small group of major publishers, a small group of elite authors, and one federal court in the Southern District of New York.

The rest of us should have stake in this process. We do not. We can blog about it all we want but none of the parties cares about our issues and concerns.

A handful of private actors are making public policy — thus privatizing the policy-making system.

That’s actually a bigger problem than whether the act of capture “privatizes” the library. We can dispose of semantic disagreements. We can’t dispose of this rather radical change in how policy is implemented.

As to “general agreement” on a monopoly situation–if there’s actually a consensus among all lawyers and commentators, then isn’t the proposed settlement doomed on antitrust grounds? (There was surely never “general agreement” as to the strength of Google’s fair-use argument; I’m really surprised if there’s legitimately consensus on the monopoly claim. Are Google’s own lawyers really that far out of touch with the entire legal community?)

Perhaps the most interesting thing about the use of the word “privatization” is that strictly speaking, the works covered by the settlement agreement are all “private” under US copyright law. In fact, opponents of the settlement agreement on the rightsholder side are criticizing it as an unfair “compulsory license” which infringes on the property rights of authors.

I think it’s fair to say that there is “general agreement” that the settlement agreement gives Google an “initial monopoly” on works that remain orphans. There is divergence on how to describe Google’s position with respect to other classes of works.

Jim Carlile: The settlement agreement has nothing to do with public domain works. It covers only works that are in copyright.

Apart from that, this is a series of speculations about what might happen–at best a slender rationale for, say “potential privatization through inattention.”