Responding as politely as possible

Karen Coyle posted “Walt Crawford should read the document” on May 10, 2009 on her blog, Coyle’s InFormation.

Note two things about that sentence:

  1. It includes a direct link to Coyle’s post.
  2. I include the name of Coyle’s blog correctly, spelling and all.

Now consider the first paragraph of Coyle’s post, reproduced here exactly as it appears:

In his March, 2009 Cites & Insites, Walt Crawford does a roundup of comments on the Google/AAP settlement, and gets very agitated when reviewing some of my posts. I’m used to that. But agitation tends to cancel out reason, and Walt gets some things wrong that he might have understood better if he had kept a clear head.

No link–but then, how could there be a link, since there’s no such publication as “Cites & Insites”? (I don’t regard “Insites” as a word and assuredly would not use it for an ejournal.)

The March 2009 Cites & Insights (volume 9, number 4) consists of an essay on a proposed settlement involving Google, AAP, and the Authors Guild (not just Google and AAP). I regard that essay as considerably more than “a roundup of comments.”

I’m not sure whether Ms. Coyle is used to people in general getting agitated when reviewing her posts or whether that’s specifically aimed at me, but the last sentence is unquestionably aimed at somebody named Walt Crawford.

The suggestion that I was unable to reason clearly because I was so agitated by Ms. Coyle’s comments is either insulting or patronizing; your choice. It’s also false. (I checked the indexes for Cites & Insights. Except for March 2009, every time I’ve quoted or commented on Karen Coyle it’s been entirely positive comment–so I have to assume that other people get agitated by her comments. That’s not necessarily a bad thing.)

There is an ornithologist named Walt Crawford in the Midwest, director of the World Bird Sanctuary. In the overall scheme of things, that Walt Crawford (we have the same middle initial, but I’m not a “Jr.”) is probably more important to the world than I am–but he has a somewhat lower web profile. I’m pretty sure we’re both members of the Nature Conservancy… Still, I doubt very much that St. Louis’ Walt Crawford has a publication named Cites & Insites or that he wrote about the proposed Google Book Search settlement.

Still…there’s enough wrong with Ms. Coyle’s first paragraph (in a post that appeared nearly three months after the essay in question) that it’s tempting to leave it at that. If Coyle can’t be bothered to link to the essay being criticized or name the publication properly, and if she finds it necessary to patronize me in the post title and the lead paragraph, why should I take her comments seriously? (She knows how to do links: there are two links in the post. I can only assume that the decision not to link to my essay is deliberate.)

[Why did it take me two weeks to respond? Anyone who’s followed this blog or my FriendFeed feed knows: Since May 10, I’ve been spending nearly all my energy moving to a new house–and from May 14 through May 18, I didn’t have internet access. Also, I recognized right off the bat that a hasty response was a bad idea.]

A quick exercise

Before reading this response further, you should read the commentary. If you haven’t already done so, I suggest reading the whole essay (including but not limited to “Putting on several hats” on pp. 4-5)–but since I’m being charged with agitation and loss of reason, you could focus on pages 20-25. Consider particularly the language in “Google/AAP settlement” (pp. 20-21) with its “Ping!” refrain and the right-hand column on p. 21 (from “…this is the pact with the devil” through “THIS IS EVIL“).

If, after reading the extensive quotations from Coyle and my brief interspersed comments, you find that Coyle is consistently cool and logical whereas I’ve gone off the deep end and gotten things wrong, then it may not be worth your while to read the rest of this.

But as I reread it, twice, I see no agitation on my part, and less rhetorical fervor in my notes than in some of Coyle’s commentary. Maybe Coyle wasn’t agitated in those posts, but it certainly reads that way–or is it that Coyle is allowed to be agitated but I’m not?

Specific objections…

What of my comments does she object to?

All libraries as well-curated collections

In questioning the need for Google to digitize based on deliberate collection-building, I say “I don’t know of any big academic library or public library that’s a single disciplinary collection–or, realistically, a set of well-curated collections.” (Coyle omits the italics in “any.” No biggie.)

Coyle says “an academic library is INDEED a set of well-curated collections.”

Really? Good academic libraries include well-curated collections, but I’ll suggest that most big ones contain a lot of materials outside that set of collections, particularly for libraries using lots of standing orders and approval plans. [OK, I spent too many years at UC Berkeley. If anyone suggests to me that the Doe Library is entirely a set of well-curated collections, I’d probably snigger, much as I love and respect the library.]

But that’s a matter of definition–what constitutes “well-curated”? I could have simply taken issue with Coyle’s lead sentences in the paragraph in question:

So the main reason why Google Books is not a library is that it isn’t what we would call a “collection.” The books have not been chosen to support a particular discipline or research area…

Even if I overstated “any,” Coyle’s implicit definition of “library” here excludes an enormous number of libraries. If Coyle wants to say that “Google Books is not a research library,” I probably wouldn’t object–but “research library” and “library” are not synonymous.

Library costs

I said “I don’t remember public universities admitting to substantial costs in cooperating with Google.”

Coyle says “Dan Greenstein estimated $1-2 per book”–and offers a link.

The article linked to says no such thing. It says that Greenstein estimated Google’s scanning costs at $1 or $2 per volume. Here’s the link: read it for yourself. (It’s a Daily Cal article. Depending how you read it, Greenstein might have been estimating a cost for cooperating with Google elsewhere in the article, but certainly not as quoted by Coyle–and, frankly, I can’t be sure just what the article is saying about the UC costs of the Google project. In any case, it wouldn’t have been an admission: This article appeared before UC joined the project. It would have been a forward estimate.)

I’ll stand by my statement: I don’t remember public universities admitting to substantial costs in cooperating with Google. (The first three words represent a caveat–maybe somebody somewhere said it and I don’t remember or never saw it. Greenstein did not say it, at least not as quoted from the cited article.)

Changing library use of libraries’ own material

Adding one brief paragraph to a long Coyle quotation, I asserted that nothing in the proposed agreement changes the ways libraries use their own material.

That’s a factual statement. Coyle’s criticism:

Not of their hard copy materials, but legal minds think that this changes the landscape for digitization and the use of digitized materials, even closing some options that might have been available before.

She quotes one such legal mind. Is there unanimity or overwhelming consensus? I don’t know (although I’m pretty nearly certain that there isn’t)–but it’s irrelevant to my simple, factual statement.

Privatization, profiles and abusing the language*

Coyle said in one of her original post that “The digitization of books by Google is a massive project that will result in the privatization of a public good: the contents of libraries.”

I objected to that sentence, “as I’ve taken issue consistently with the same claim by others with even higher profiles than Coyle (who are even less likely to ever admit they could be mistaken).” Coyle takes me on for not making the “higher profile” people and adds this: “But thanks for letting me know that you consider me a ‘lower profile’ person, Walt.”

What? If I say Barack Obama has a higher profile than Rick Boucher, I’m not saying Rick Boucher is “a lower profile person”–except by comparison. If you want names, there’s Brewster Kahle and Siva Vaidhyanathan–and yes, I do consider them higher profile. (Based on Coyle’s post that I’m commenting on here, however, I withdraw the parenthetical clause in my comment.)

I went on to say the “privatization” claim was “Nonsense. Sheer, utter nonsense. The libraries and contents will still be there. OCA will still be there. I’m sorry, but this one just drives me nuts: It’s demonization of the worst kind and an abuse of the language.”

Coyle’s response?

There is general agreement that Google gets a monopoly…at least on out-of-print books.

Based on this “general agreement” she says the claim of monopoly “is a factual statement.” I haven’t seen any sort of unanimity on this claim, and I wasn’t aware that consensus constituted fact–but in any case, that has nothing to do with the wording I objected to: “privatization of a public good: the contents of libraries.”

Did Ansel Adams privatize the great views in Yosemite by taking photos that are so iconic they’ve made it difficult for anyone else to do as well? Obviously not; he created something by using a public good, and in doing so enhanced the public good (making Yosemite more popular).

If I go to a library, check out some books, and create something new based on those books, it would be nonsense to say I’d privatized the contents of the library. If I built an index by going through each book, and then returned the books, it would be nonsense to say I’d privatized the contents of the library.

How is Google’s project different? The books are on the shelves, at least as accessible as they were before Google scanned them…and realistically a lot more accessible.

The public good is not in any way diminished or privatized. If a possible future extension of the public good is less likely because Google has a first-mover advantage or because the language of the settlement gives them advantageous treatment, that’s a very different thing.

Preservation and longevity

Discussing issues of preservation and longevity, I said:

Won’t the fully-participating libraries have digital copies? I can’t think of institutions with better longevity.

Here’s how Coyle begins her refutation of my comment:

To begin with, only fully participating libraries will have digital copies…

Since Coyle agrees that “fully participating libraries will have digital copies,” there’s really no point in going further. (If I say “All Honda Insights are hybrids” and someone begins a critique of that statement by saying “To begin with, only Honda Insights–among Hondas–are always hybrids”–there’s little point in continuing the discussion.)

…without discrimination and without liability

Here’s one where I may be wrong. I assumed Google wouldn’t argue with the idea of carrying all scanned books.

Coyle points out that the settlement does not oblige them to do so. Since this is the single case in which she’s asserting I would have gotten it right if I’d read the full 134-page settlement, I assume this is the genesis for the post’s title.

If we assume that Google was 100% responsible for the language of the settlement (which I do not) then I’m clearly wrong here. Let’s assume that I am.

I’ve been wrong before, I’ll be wrong again. If Coyle had pointed out this single case in a more temperate manner, I’d be delighted to include that in an update to the essay as a useful correction and expansion.

There are legitimate reasons for concern about the settlement

That’s what Coyle says.

I agree. I say so repeatedly in the March 2009 Cites & Insights.

If that wasn’t the case, I wouldn’t have produced a 30-page issue: A one-paragraph note would have been sufficient. I certainly wouldn’t have guided people back to Coyle’s posts.

Coyle doesn’t think that anything she has said is “nonsense.” Sorry, but I have to disagree. The “privatization” line is nonsense–just as it’s always been when Prof. Vaidhyanathan uses it, just as it is when Brewster Kahle uses it. It’s an abuse of the English language, and by demonizing Google it gets in the way of improving the settlement and the situation.

Frankly, if it hadn’t been for the tone of Coyle’s post and her accusation that I’d lost a clear head, I might not have written this post at all. Coyle has provided valuable service over the years in analyzing the Google Books project and the proposed settlement.

*Postscript: The comments on this post include various defenses of “privatization” as an accurate and appropriate term. They make interesting reading, and I urge readers of this post to read all of the comments–and decide for yourself. (I’ll probably prepare a commentary in a future C&I, incorporating most or all of this post and its comments.)

I still regard “privatization of public goods” as an abuse of the language as used for anything in the proposed settlement. When you create something new based on public goods, leaving the public goods intact, I can’t find that to be privatization as I understand the word.

But I should also clarify that it’s not Karen Coyle’s coinage or distinctive usage–if I’m saying it’s nonsense on her part, I’m also saying it’s nonsense on the part of Siva Vaidhyanathan, Brewster Kahle and probably quite few others. Which, to be sure, I am.

It’s a shame that an argument over books uses the language so sloppily–but “privatization of public goods” has a distinctive harshness to it that more accurate terms might not.

This postscript does not attempt to cut off the discussion of the term. I think it’s a fascinating discussion. Do note that I regard comments here to be bound by the same CC license as the blog itself, meaning I can (and will) quote them in their entirety in Cites & Insights–and, of course, that anyone else can quote them for noncommercial use.

15 Responses to “Responding as politely as possible”

  1. Hi Walt,

    I just thought I would weigh in on the privatization question. I see that you and Karen are in the midst of a heated argument. I don’t need to speak to every point of what seems at this time to be one of diction and manners. I respect both of y’all very much. So I hope I can push the argument beyond its current domain.

    To be clear: the privatization indictment does not fall on Google. Google is private. It does what is good for it. Google is not the problem here.

    The privatization accusation is one that bears on the university libraries that have — for the most part — given away millions if not billions of dollars worth of collections to a private entity with no clear return and at great risk of liability. The libraries are committing self-privatization. That has two levels: the terms of the original deals with Google and the new vending machine proposal that comes from the settlement.

    This whole project is gross corporate welfare. The currency at stake is a non-rivalrous good. So it’s not like federal subsidies to Agribusiness. It’s of a lower scale and stake. But it’s welfare nonetheless. The system profits Google and Google alone. The libraries see little or no benefit from the deal. So let me explain what I mean by that.

    You raised a strong rebuttal: Google as patron. Let’s say I walk in to a library. Use the collections. Check books out. Make copies of some of the content. Then I set about creating something new that relies on that content that I sell on the market. That’s in fact what I do with the books I write. Good enough.

    How is Google different? No patron taxes or binds libraries like Google has.

    First, when I use a library I do not tie up the staff time of dozens of employees for years at a time (at least I hope I don’t). This is happening at every Google partner library. I do not make librarians sign non-disclosure agreements that prevent them from discussing the pros, cons, and costs of the my use with the public (or even their own faculty). My use of the library is compensated by the taxpayers of the Commonwealth of Virginia and by the fees my students pay.

    Google, in contrast, “pays” directly for this windfall through an illegal barter arrangement by which it agrees to make low-quality wholesale copies of millions of books (that Google chooses, thus not necessarily serving the interests of the library).

    Why is it illegal? Well, because of the un-litigated and thus unsettled copyright infringement issue: Google is transferring copies as payment for a commercial transaction. Nothing in Sec. 107 0r 108 or any case relying on these sections grants a right to make copies of copyrighted works and transfer them as payment. Nothing in the settlement prevents publishers from suing universities if they don’t like how universities are using the material. That’s such a scary prospect that many Google partners — including my employer — have declined to download these images from Google’s servers. University lawyers are rightly alarmed at the liability prospects. So for many universities it’s worse than a something-for-nothing prospect. It’s a loss. They lose staff time, lawyer time, and books from circulation for weeks at a time. Yet they get nothing.

    Now, I am willing to say at this point that if Hathitrust flowers into what its visionary leaders predict, I am willing to withdraw many if not all of these concerns.

    Let’s remember that the UC system deal and the Michigan deal are the exceptions within the Google Book Search universe. These universities negotiated better terms for themselves early on. Michigan is still cutting better deals even now (see The rest of the libraries are finally coming around to realizing what a bad deal this was for them and the extent to which they were scammed. Harvard did not back out just because Bob Darnton likes the smell of books. He dislikes the smell of the contract he inherited from the Larry Summers regime. I have heard clandestinely that a number of other partners are considering terminating their deals if they are not substantially renegotiated.

    The second part of the privatization is the vending-machine model of delivery that Google is pushing on libraries through the settlement. Libraries will for the first time have little bookstores inside of them. That’s bad enough. But libraries will have no recourse if Google overcharges for the service or (more likely) puts onerous terms on the use of the material. That’s blatant privatization of public library space. Now, I’m no purist. And I recognize the value of hot-dog vendors in Central Park. But this has not been part of a process by which the libraries have been invited to the table or been able to stand up for traditional values of librarianship: free and open access; user privacy and confidentiality; preservation; a public space free of commercial influence; etc.

    So while the word “privatization” is unsubtle and imperfect, it’s relevant and important in public discourse about this project that will have tremendous impact on the future of libraries and the public sphere. I use it because I have to pop the bubble of perception that Google works for us. And I use it because I have since 2004 wanted libraries to see that Google does not work for them. Google works for its shareholders — as it should be. We as citizens and members of the library community have not been as critical or vigilant as we should have been. And sometimes strong words like that serve the purpose of waking people up and pulling them into the conversation. The fact that criticisms of Google Book Search and the settlement have grown louder and wider in recent years is evidence of the value of such tactics.

    Privatization is not a boolean quality. It has gradations. If I can’t convince you to see this massive project of text-giving by public libraries to one of the world’s most successful and aggressive corporations as part of the process of privatization, so be it.

    Brewster, Karen, and I are hardly naive about the steady privatization of library services through expensive vendors etc. Brewster, after all, made his killing through the private sector in the first place. But we all recognize the virtue in minimizing the influence of private interests within and among public institutions — especially libraries.

    Oh, and BTW, OCA will not necessarily be around forever. It depends on philanthropy. And philanthropists don’t like to duplicate what the private sector is already doing. Moreover, if the settlement goes through OCA will not be able to compete at the level of full-text availability for most of the books of the 20th century. So there is no point even comparing them. And I think we all have to consider the pressures that non-librarian boards and administrators put on libraries to reduce their collections whenever there is a potential “alternative” to the physical item. And Google is just that sort of poor substitute for the original. I wish I were as confident as you that the OCA will be part of the mix 20 years from now. I think a bigger danger, however, is that Google either goes bust or transforms into something very different. What if its board in 2020 decides the book project is a money-loser. What then?

    These are serious issues, even if you don’t want to traffic in terms like “privatization.” I know that you get that and I value your contribution to their consideration.

    So what do you want to see next? What should libraries do in the case the settlement is approved? What should they do if the court rejects the settlement or the Feds pursue anti-trust action against Google?

    I have some big ideas. I would love to hear yours.

  2. walt says:

    Thanks for the detailed comment. No, you haven’t convinced me that “privatization of public goods” is a reasonable term for what you say is going on. But you state the case well.

    I don’t expect to be contributing Big Ideas in this particular area. There are plenty of others more qualified to do so. I’m mostly commenting and synthesizing, in this case as in many others. (I’ve never been a “public intellectual,” and at age 64 I may lack the drive to become one.)

    I certainly agree that these are serious issues. I think serious issues deserve clear language, and I continue to think “privatization” is so unclear as to muddy the issues in general. But I’ve said that before, and may be getting repetitious with it. I’ll let it go at that.

  3. bowerbird says:


    i agree with you that the paper-books
    that are still there, sitting on the shelves,
    have not been “privatized” and are _not_
    subject to a google “monopoly”…

    and it’d be nice if everyone admitted that,
    as there is another concern here, however,
    and sloppy talk just confuses the issues…

    my concern is not with those paper-books,
    but with the digital output from scanning.

    because the page-scans and o.c.r. output
    gained from the scanning process _are_
    subject to quite tight control by google,
    as per the contracts made with libraries.

    each library holds copies of the scans and
    (sometimes) the text from their own books,
    but they are prohibited from sharing them,
    even with each other, by those contracts…

    (and the recent renegotiated contracts do
    little to address the problem globally, but
    rather attempt to segment off the libraries
    which cooperate from those which do not.)

    so google is the only entity that holds the
    cumulative product, which is troubling…

    surely this is _not_ the kind of situation
    we would’ve planned, if we would have
    been doing planning on the cyberlibrary.

    (and i, for one, wonder why our librarians
    were sleeping at the switch on this matter.)

    the _beauty_ of the digital product is that
    it can be _duplicated_ at virtually no cost,
    and then _distributed_ at virtually no cost.

    the main reason to scan books, therefore, is
    so we can easily create a global cyberlibrary.

    to trade away this ability to _share_copies_
    just to get your books scanned is _stupid_…
    there’s little reason to scan if you don’t share,
    so it’s suicide to sign a contract that explicitly
    bars you from sharing. absolutely asinine…

    i objected strongly to the contracts originally,
    but i still thought that if google was willing
    to do the sharing, that was “good enough”…

    after all, what difference does it really make
    if i get the scans from google or my library?

    truth be told, google seemed to be the only
    entity that was _competent_ enough to do it.
    the libraries themselves are laughingstocks…

    well, it ends up that — with the “settlement”
    google crafted — it makes a _big_ difference,
    because google is going to _charge_me_…

    and google is gonna charge _libraries_ too!

    and there’s nobody else we can turn to, either!

    it’s google, or do without.

    pay what they say, or go away.

    that’s a monopoly, walt.

    they turned the library into a bookstore.
    and it’s a bookstore with no competition.

    so google wants to charge us for something
    that costs nothing to reproduce or distribute.

    the only thing google did was scan the books,
    which cost google less than ten bucks a book.

    and now the libraries, which bought the books
    and paid good taxpayer money to house them
    for decades and decades, have to pay google
    to rent back a copy. that’s one bloody ripoff…

    this “settlement” needs to be soundly rejected.


  4. walt says:

    I choose not to reiterate things I’ve mostly already said in response to a pseudonymous comment.

  5. Jim Carlile says:

    I think where the idea of “privatization” does come in is when considering the possibility that libraries will weed their collections in response to the online Google corpus. If they start trashing old “duplicate” PD works– which many public libraries will indeed do– this means that Google has effectively privatized the public domain for many users.

    Academic research libraries may not be as willing to discard their books, but some will, at least a part of their collection. The political pressures will be too great.

    This will give Google a very real monopoly on access. Factor in the profit potential of these “Google machines” and it’s very likely that the only way you’re going to get ahold of many books in the future is through the Google.

  6. walt says:

    I must have missed something here, as my understanding is that the settlement wouldn’t change the status of scanned public domain works at all–they can be downloaded and reused freely. Even if research libraries took the unprecedented step of tossing out their PD collections (is Harvard really going to abandon pre-1924 books? Are there political pressures on the many private ARL libraries to toss out stuff that Google’s scanned? Really?), I don’t see any probability that the only point of access to PD books could be Google. I thought the whole “privatization” argument had to do with the majority of the scanned books, which are out of print but still covered by 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.”

  7. Eric Hellman says:

    Walt: Looking at the language used in this discussion, I’d have to say that your characterization of Karen’s “privatization” claim as “nonsense” is inaccurate. It may sound odd to describe publishers who sell copyrighted translations of “Romeo and Juliet” as “privatizing Shakespeare”, but it’s not nonsense.

    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.

  8. walt says:

    Eric: If someone translates a public domain work, the translation is, I believe, legitimately copyrightable–and does not in any way lessen access to the original work. So I wouldn’t buy calling that “privatization” either. It doesn’t fit any of the definitions of the word that I’ve found.

    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?)

  9. Siva Vaidhyanathan says:

    I believe Eric has raised a very important point that reflects on a very different notion of “privatization,” and that is of policy. There was this problem or challenge: It’s safe to say that creating a text-searchable digital index of millions or billions of books, and making them available via the Web would benefit the republic and the planet. Let’s just assume that.

    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.

  10. walt says:

    Other than a possible quibble about “what libraries should have been doing”–Michigan was, in fact, doing some of it, but the bucks to do scanning to library standards posed, and pose, a substantial barrier–I have no real disagreement with this latest comment.

  11. Jim Carlile says:

    Actually, I’m just using PD works as an example of what can happen when one company gets in there and locks up the corpus. This possibility of “privatization” goes beyond just PD works, but I think it’s important to remember that Google can end up privatizing the public domain, and at public expense. It’s still privatization, in a very real, and not abstractly legal, sense.

    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.

  12. bowerbird says:

    walt said:
    > I choose not to reiterate things
    > I’ve mostly already said
    > in response to
    > a pseudonymous comment.

    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…


  13. Eric Hellman says:

    Walt- Just because something is a monopoly, doesn’t mean it has antitrust problems. Indeed, copyrights, patents and trademarks all create 100% legal monopolies. Randy Picker’s paper does a wonderful job of illuminating the murkiness of antitrust law as applied to the Google Book Search Settlement agreement and makes suggestions as to how possible antitrust concerns might be addressed.

  14. Jim Carlile says:

    I think Bowerbird’s right. In ten years or less, the very real consequences of Google locking everything up for a downloading or view-only fee will overshadow any of these philosophical arguments about exactly what they are doing right now.

    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.

  15. Peter Murray says:

    Jim Carlile says:

    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?