The Google Books Mess

There were a couple of tell-tale signs last week that Google may be having some pain and problems with its vastly ambitious Google Books project. First, was the news that Google was pulling the plug on its corresponding, open-ended, plan to scan and database masses of historic newspaper archives. Second a report that Google was diverting all its programmers from its eBookstore and perhaps not vigorously pursuing plans selling eBooks.

The problem that Google has, is that there was huge momentum within the company towards its grandiose plan for a comprehensive universal digital library and this vision, with its accompanying class action settlement [ASA or amended settlement agreement] was decisively stopped in March by the opinion of Judge Chin (USDC SDNY)

While the digitization of books and the creation of a
universal digital library would benefit many, the ASA would
simply go too far. It would permit this class action – – which
was brought against defendant Google Inc. (“Google”) to challenge
its scanning of books and display of “snippets” for on-line
searching – – to implement a forward-looking business arrangement
that would grant Google significant rights to exploit entire
books, without permission of the copyright owners. Indeed, the
ASA would give Google a significant advantage over competitors,
rewarding it for engaging in wholesale copying of copyrighted
works without permission, while releasing claims well beyond
those presented in the case. (Opinion 22 March 2011)

Chin’s decision is styled an opinion, and it might yet be appealed or revised, but most observers would tell you that it has pretty well stopped the Google project in its tracks.

Google has got a lot of figuring out to do:

  1. Google is not out of its legal woes, although such a rich and powerful company can probably stall or out-manoeuvre the authors and publishers who are parties to the original suite in the USA. Yet Google will need some resolution to the case or it risks enormous damages for breach of copyright ($3.6 trillion according to one scholar).
  2. Google will not find it straightforward to avoid legal actions in other jurisdictions. It has ongoing legal woes in France, and if some French publishers win substantial damages, many others will charge through these same gates.
  3. Google is continuing to scan without permission millions of works which are not out of copyright on behalf of its library partners. So the liabilities grow.
  4. Google will be required to deliver digital library services to some of its core collaborating libraries. The libraries of Michigan and Stanford in particular. To the extent that these services depend on copyright works digitized without permission Google remains at significant risk.
  5. There will be increasing concern about advantages that may accrue to Google from the works that it has already scanned and databased, and which it may use in ways impervious and invisible to external actors. Perhaps Google will gain enormous advantage in the fields of search, automated translation and semantic technologies through private access to vast amounts of unregistered, unlicensed, copyright material. That putative advantage creates legal risks for Google from competitors and regulators.
  6. Without a recognized and legitimized settlement Google cannot deliver services of general public benefit, and at some point Google loses good will. Without a settlement Google cannot even be generous.
  7. Google has plenty of agreements with publishers and authors for the distribution, display and potential licensing of millions of copyright works. So it could be an active participant in the eBooks market, but it has been strangely hesitant and stuttering in recent years about its commercial activities. Almost certainly because Google’s lawyers are anxious about the way such commercial exploitation may play against the unresolved matters in dispute. If Google carries on havering it will lose its opportunity in the digital books market, much as it appears to be losing its opportunity in the market for digital music.

I am not sure that Google has an easy way of stepping out of this mess. But it needs to find, or create through disruptive action, some solution.

The original goal of a universal library designed, built and maintained by a single technical player was hubristic and naive, driven by the enthusiasm and commitment of the founders (Page in particular who felt that he owed a debt to his alma mater, the University of Michigan). Google’s best hope now would be to distance its involvement from the prospect of private gain and to place all works not public domain, and not explicitly licensed to Google, in the sole care and control of the public academic institutions from which the original works were taken, and to renounce any commercial advantage through its involvement in converting ‘orphan’ works. Google will have to pay the authors and publishers something (if only to cover some of the legal bills, that will otherwise be pursued to the bitter end on a contingency basis by the other side), it can afford to finance the first blocks of a Rights Registry, but it should be more open and more public, more consultative, in part foundation funded, than the original design. Google does not need and should not look for special advantages on rights and forward-looking business models. If Google were to do that it could help to promote the cause of orphan works legislation in a disinterested manner. Google needs to get legitimate, beyond all shadow of doubt, fast.

Google often likes to play the ‘open’ card, but it has been far too closed and ‘private’ over its books project. It needs to rethink the game-plan and its style of involvement. That way it will retain the good will of the library community and the reading public. By being highly generous and public spirited it looks after the interests of its shareholders also. Page is now CEO and he may need to bite on the books bullet and own up to a change of course, only be being much more open and generous can Google hope to make something like the Google Books project a reality.

What do Literary Agents Do?

The other day I was talking (mostly listening) to someone who works in trade publishing. That is the kind of publishing in which books are ‘sold’ for advances of £25K, or maybe £250K, or very occasionally more than a million smackeroos. This friend/acquaintance was explaining that the house she works for controls very few of the electronic/digital rights in the books they publish and she was frustrated that agents seem highly reluctant to grant any rights, or even to experiment with digital propositions.

This got me to thinking. What is the point of an agent who does not do deals? We do not hear much about agents doing digital deals. Are they just sitting on their authors’ rights and not exploiting them at all? Or are there soon going to be a rash of direct deals by agents with the likes of Amazon, Sony, Apple, Plastic Logic, Google etc? Perhaps there will be some deals: a couple of months ago Amazon flew a dozen top literary agents to Seattle for frank discussions. A few days ago Amazon announced that they had done an exclusive deal with Paul Coelho, exclusive for all his e-books in Portuguese. I wonder how much Amazon had to guarantee or pay as an advance for the exclusive rights? But all the e-books rights for Portuguese Paul Coelho, (why only Portuguese?), does not sound like such a big deal (oh yes, I know he is Brazilian, so it is a fairly big deal).

I suspect that exclusivity is the key issue here. Agents are used to handling and dealing in exclusive rights, and they are working with the hypothesis that digital rights are going to be like the exclusive rights that they have learned to carve out of the traditional book-publishing contract. Identify and separate the rights and sell each of them for as much as possible to one counter-party. But are digital rights like this? Does exclusivity really cut it in the innovative market for digital books? It has always seemed to me that copyright owners would be better off, and publishers would also be in a stronger position, if digital deals were almost always non-exclusive. Why do an exclusive eBooks deal with one supplier if there are 15 different players in the market, each with their own ‘installed base’? Why do a five year exclusive with Amazon if the market for digital is going to end up with Apple, or Google or someone else?

If you look at the couple of dozen eBook reading platforms that were announced, re-announced, released or previewed at last week’s CES (Consumer Electronics Show), it would appear to be quite possible that the market for digital rights is going to become extremely diverse and based on many different types of non-exclusive exploitation. Are agents capable of handling this kind of fast moving market? Is your typical literary agent capable of identifying and negotiating deals with dozens or scores of technology partners? How many literary agents were at CES in Las Vegas last week? Not too many, and few literary agents are comfortable in evaluating technology propositions.

Perhaps agents should get used to the idea of granting all digital rights to the book publishers they deal with on a non-exclusive basis, retaining the right to do non-exclusive deals themselves in certain circumstances. That way publishers and agents will all be working for the trade authors they represent. Just at the moment, it appears that a degree of paralysis and ignorance is ensuring that as few deals as possible are taking place. We are seeing the emergence of a new class of ‘neglected exploitation’ rights, somewhat analogous to the ‘orphan copyrights’ which lie at the core of the Google Books Search Settlement.

Lessig on the Google Books Settlement

Lawrence Lessig contributed a 40 min discussion to the Berkman Center’s seminar “Alternative Approaches to Open Digital Libraries in the Shadow of the Google Book Search Settlement”. (In the ‘shadow’ of the Google Settlement — doesnt this make it sound a bit ominous?)

He opens with a comparison between Tiger/Kitten and Tiger/Tiger. Google has to be the Tiger. So although not explicitly anti-Google, his rather mournful assessment of the Google project is moving away from it. Watch out for the claws. He recognises that the GBS Settlement may represent progress and have some positive results, there are even so a lot of downsides: “We need a framework to encourage experimentation”; “We should not trust our culture to kittens that turn into tigers”; There is a tendency in the extraordinarily complex settlement agreement “against the ecology of free access which we have had since the invention of printing”.

Lessig’s position is not hard and fast, and tries to avoid being anti-Google. There is something rather soft, touchy-feely, about his extreme example of what is happening to books: it is far-fetched, in my view, to suppose that books will be as ham-strung with temporary permissions as documentary films. It is not clear what his recommendation really amount to. The ‘appropriate or the best ecology of access’ is a vague idea.

But Lessig is putting his finger on some of the tender issues in the Google project. There is a worrying tendency for the Google Books project to dissappear in a vastly complicated and centralised network of permissions, concessions, exceptions, pettifogging access restrictions, content omissions and database-driven implementation decisions which may yet stifle the project. Or, at the very least, cramp its style. With Google Book Search, code is very much becoming and making law, but not in ways that Lessig can welcome. Something looser, more rounded, more democratic and multi-polar is needed. The ultimate and inevitable failure of Google’s project as it is currently shaped is that it is not putting books in the centre of its intentions. Books are not being given room to breathe.

The Trouble with Orphans

In the old dispensation books (and magazines and newspapers) used to be published and then gradually disappear. A few copies of any particular print run would be kept in archival conditions in important libraries, but by and large they gradually mouldered away. In fact they biodegraded into mulch. Something similar happened to the ‘copyrights’: to the intellectual property that the publications crystalised. After a few decades, and with the exception of a very few masterpieces or works of genius, the intellectual property that they represented was of negligible value or interest, and they would sooner or later fall into the public domain, probably before the physical book biodegraded. At that point the ‘IP’ did not matter, or rather it mattered only to the public domain.

In the last 10 years there has been a growing tumult about ‘orphan’ copyrights. Or ‘orphan works’. In the eyes of some of the key critics, eg James Grimmelmann, the real problem with the Google Book Search proposition and the Settlement that Google is reaching with Authors and Publishers is all about the orphans that are being swept up into the maw of Google’s 7 million, and counting scanned digital books.

But the funny thing about ‘orphan works’ is that the very category is defined by the technology which makes it possible to replace or preserve printed books by digital books which could last forever. The books and photographs are no more ‘orphan’ than they ever were, it is just that they look like they should be imortal rather than biodegraded, so who can speak up for them on that? Suddenly old and mostly forgotten copyrights seem to have some possible value, because the digital books could last for ever, and who knows but some of them (a few) will surely have considerable hidden value? To many of the critics it does not seem right that this value should accrue or crystalise to Google (and to the Authors Guild and some Publishers), rather than to anybody else.

If you buy the idea that the ‘orphan’ status of a book (or some other piece of intellectual property) is more a function of the new technology than of the old which was around when the object was born or conceived, there is an interesting corollary. As technology improves the orphans become more valuable. The ‘orphans’ may indeed become a lot more valuable when computation advances again, as it will. Especially if the orphans can be used to construct something else, something that we dont yet understand. Who is to say what value they have? There is a lot in the Google Books Settlement about ‘non-consumptive’ research (which roughly means ‘reading by computers and software’). Who knows how valuable that could become?

We may get a glimpse of this when Wolfram’s intriguing Alpha project is unveiled. From Rudy Rucker’s recent blog about what Alpha portends, it certainly sounds to me as though Wolfram and his team have been doing some pretty sensitive ‘non-consumptive’ reading of key reference books:

I asked him how he is handling the daunting task of finding out all the possible scientific models. “There’s only so many linear feet of reference books that exist in the world,” remarked Wolfram. “Nowadays when I go into a library I look at the reference shelves and try and estimate how many of them we’ve picked up. I think we’re close to ninety percent by now. Right now my office is mounded with books with bookmarks for things we still need to implement, and one by one the bookmarks and the books are going away.”

When the database representation of what a book is about gets to be that powerful and expressive, non-consumptive reading is arguably more useful and valuable than the old fashioned human kind of reading. Orphan copyrights, in a clever enough computer environment, have much more value than their publishers or authors could have imagined….

Google Books Search: What is Good for Google is Good for the USA

There was an important Conference on the Legal and Publishing impact of the Google Books Settlement at Columbia Law School on Friday. Several attendees, led by Peter Brantley, were actively Twittering the event, see #gbslaw for the Twitter-stream. There are one, two very useful reflective summaries posted by Peter Hirtle (lawyer at Cornell Library).

Apparently one of the recurring themes in the conference was this mantra “What is good for Google is good for the USA.” I am sure that it was said in jest/irony, but that must nevertheless have made the Google participants unhappy. Even if ironic, the comparison is wounding. Just now being compared to General Motors is nearly as bad as being compared to AIG, and is frankly worse than being compared to Microsoft (which would also be very unfair and unwelcome to Google, but the comparisons are coming…). The mantra is especially unfortunate, since it is far too close to the bone: the whole way the Google Book Search settlement is working out is far too US-centric, as though Detroit was the market, and the accessibility of digital books in the rest of the world was not a matter of importance to the US or to Google. General Motors has been building inefficient and slipshod cars which had limited appeal in the rest of the world and failed the ultimate tests of quality engineering and sustainability. Could Google fall into a similar trap of building too much, too wastefully, for local demand and national circumstance without full attention to all the factors which build quality, openness and sustainability? Apparently some anxieties on this score were raised at the meeting. Somewhere in the Twittering I saw someone questioning how the US would feel if another country adopted a similar approach a private enclosure and database representation of all the books in the English language held by French libraries (the French or even more probably the Chinese Union Database Library? It will probably happen). Can you imagine the uproar? Senator Conyers would have most unfavoured nation legislation in train within a twinkling…

A lot of the books from these dusty stacks in Michigan and California are foreign published. Through the group of libraries in the US with which it is collaborating Google will catch in its net of NotYet OutOfCopyright but OutOfPrint titles a vast swathe of books originally published by British, French and German publishers. Google has apparently spent $7 million in the last two month on press advertisements in over a hundred countries to advise authors and publishers of the rights that they may have in the Settlement to the use of their books in the US market ($7 million on print ads for the legal notice, few text database projects have had a total investment this large). But the authors of those books are also readers and if the eventual legal and technological effect of the Settlement is to make the access to those books much less viable in the countries in which they were written or published?

Spare a thought for Google: not only it is it being compared to General Motors, they now also have to deliver on the very substantial obligations which the Settlement imposes on them, in particular to roll out commercial services to libraries and to individuals (to reiterate: these obligations are only to deliver services to the US market). This is going to keep Google very busy. Many critics of the Settlement have pointed out that it creates an enormous (millions of books) private preserve for Google, from books which look more like they belong to the public domain, either because they are orphan, or because they close to orphan. This monopolistic position is seen as an obstacle to competition. Of course it is in one way a matter of enormous advantage for Google.

But there is another way of looking at the situation. Google is now under the obligation, the heavy public expectation of delivering services from this massive collection. I believe that it will be under a very heavy public expectation and moral obligation to deliver, or find some legal way to enable, similar services to overseas markets. Google has assumed an onerous obligation to curate and deliver services for a large class of legacy titles. Inevitably it has been taking short-cuts, there is a weird absence of metadata, it has missed some quality goals, the books are not always exciting, many of them are out of print for good reason, I suspect that the difficulty and the importance of this legacy task will in itself make it impractical for Google to be the innovator in the book space that it might like to become. It is much easier to deliver an innovative and truly revolutionary social service for book readers when you are not curating 10 million titles. Hirtle concludes his excellent notes with this:

Yet while there may be great disappointment with the process used to generate the settlement, I also detected no incipient revolution against the settlement itself. No one was calling for rights holders to register and submit comments to the court (as they can do until 5 May). No one was saying the court should reject it and tell the parties to start over. Yes, the class may be too large and the mechanism too crude, but we created this problem when we abandoned formalities, lengthened copyrights, and started treating every copyrighted item in the world like it was a Disney movie. Given this procrustean bed we have made for ourselves, the settlement may be our only way out. Yes, Congress should create a compulsory license authorizing the use of out-of-print books – but don’t hold your breadth waiting for that. In the interim, the settlement may be the best we can hope for – even though it has the potential to radically alter all of our worlds. (Hirtle: Library Law Blog)

Google will proabably get its way, for the most part, with the Settlement, but it may also find the bed it has made for itself, with the aid of Publishers and the Author’s Guild, somewhat procrustean. The tasks it faces are Herculean. It will surely get a lot of attention from lawyers (within and without the business). There will be worries about monoploy and anti-trust but there will be plenty of competition.