The Catch-22 of Google Books

March 28, 2011

booksIt’s almost a Zen Koan: How many books does a library make?

For Google the answer is: “All of them.”

As of last August that particular number was about 129 million, and since then probably tens of thousands have been added to the world’s shelves, even if you exclude Nicole “Snooki” Polizzi’s A Shore Thing.

Some tiny fraction of that immense number is good enough for nearly every library in the world, be it the Library of Congress, the world’s largest, or modest locations which are no less devoted to the preservation and dispensation of the world’s collected knowledge.

For Google, though, it’s all or nothing: The Google Books Project — “one company’s audacious attempt to create the largest and most comprehensive library in the history of the world” as correspondent Ryan Singel put it — began nearly a decade ago.

The initiative has seen its up and downs over the years. But it hit a serious roadblock last week when a judge ruled that a difficultly-forged agreement among Google, authors and publishers was simply unfair to a particular class of writers: those who cannot not be located to be given the opportunity to choose to allow their copyrighted works be included in the project.

As luck would have it, these so-called orphan works represent a significant portion of the world’s collected knowledge. Google hasn’t said how many it thinks there are, but one academic believes it might total 70 percent — some 90 million works.

The remaining 40 million or so may be plenty for your friendly, neighborhood library, but not for the Google of them all.

Judge Denny Chin raised a number of concerns. But chief among them is one which strikes at the project’s core enabling compromise: the creation of a class which speaks for everyone and allows Google to scan all books and eventually sell them in digital form — including those by elusive authors who have not specifically opted in.

In so doing Judge Chin created something of a Catch-22: The opt-out system he struck down would seem fair enough if you knew how to find every author of every work. But to ask the question you have to be able to find the author.

Clearly copyright law hasn’t kept up with the pace of innovation — even if the Google Books project was limited only to works in the United States, which it is not.

Chances are that significant numbers of authors would opt in to a program that offers found revenue from out of print books. But even a system which requires an owner to opt out might rankle: If you didn’t want to sell your car, should you have to lift a finger to prevent someone from giving you some money and driving it away? Shouldn’t an owner always have total control?

Still, if the public good is overarching, the rights of individuals can be deemed secondary. In Kelo v City of New London the Supreme Court ruled, in essence, that a town could kick people out of their homes to increase tax revenues.

Google is a private company, of course, and stands with the Books project to make money from things other people own even as it provides the world with an everywhere, always open library of everything. But the Utilitarian principle could apply, if harm to the individual is greatly outweighed by a greater good.

This is the crux of the eminent domain finding in Kelo — in which, by the way, a government ran interference for a business in a self-aggrandizing way. If the U.S. government got involved in the Google Books Project, it wouldn’t even have any vested interest. It would only be making a Solomonic decision about the relative rights of citizen intellectual property owners.

It looks like the U.S. Congress might be the next battleground for a long-overdue look at not only the limits to copyright protection but the dizzying array of copyright terms.

It’s not much of an argument, but it would be a shame if Google Books was derailed. The search giant is (at least at the moment) uniquely placed to do it and strongly motivated. It has found common ground with former adversaries who now even take the lead in advocating for it.

Among the fantastic possibilities is the discovery of knowledge hidden in plain site. Atlantic senior editor Alexis Madrigal says his book, Powering the Dream: The History and Promise of Green Technology, could not have been written without Google Books.

“My book puts a topic front and center that has been hidden in the footnotes of the American energy story,” Madrigal wrote as a Wired staff writer. “And without Google Books, I’m not sure it would have been possible to write it.”

Don’t get me wrong: My livelihood depends on the protection of intellectual property rights (even if in reference to myself I use the phrase loosely). Anarchy isn’t an option, and neither is the untoward seizure of property.

Somewhere in that vast middle is common ground. Wouldn’t it be ironic if the answer was hidden away in a book we all forgot existed?

Photo: John C Abell


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Knowledge is power. That’s a lot of ….Knowledge

Posted by tmc | Report as abusive

Great article; thanks for that.

Posted by bmmm | Report as abusive

As ridiculous as Kelo v. City of New London was, it was not solely based on increasing tax revenue. The issue was whether or not the city’s proposed plan qualified as a “public use”. A divided court (liberals taking the majority, at least for the most part) ruled yes. I’m not completely sure the jump from Kelo to Google is appropriate. The Kelo court was required to cleverly phrase some its wording to support its holding; however, the fact remained that it was the city against the citizen. In google, you have a company against a citizen. Whatever manipulations may have occurred in that opinion, perhaps the writer of this story should have read the entirety of the wikipedia link:) Eminent domain utterly failed in that case and backlashes have appeared from former President Bush, congress, and states; making an eminent domain a more difficult suit to win.

Posted by chemlawdr | Report as abusive

Google is basically saying “If you don’t opt-out- we will take what is yours and sell it.”

Thank, my friends, is stealing.

If you don’t tell me I can’t take the CDs out of your car, then it is OK for me to take them without asking and sell them.

Do not evil?

Posted by gordo365 | Report as abusive

@chemlawdr I am pretty comfortable with the philosophical similarities of my reasoning.

In order to raise taxes, the taxing entity declared ‘public use.’ But the context was a desire to do something ‘better’ with someone else’s property, and it required making what was a novel argument that the Court accepted.

Same with Google Books only better.

Google is also driving an agenda that a governmental entity can find a way to make work. But all the backlash you allude to arose in part because many believe SCOTUS legislated from the bench. When a legislature legislates, that criticism cannot be made.

To me, this makes the Google issue and Kelo nearly identical twins, with Google having a much better claim to governmental cover than the private developer New London had selected to develop the land under Kelo’s (et al) house.

New London was to directly benefit from the argument it made. Whatever the objective good, the city’s motives were dripping in self-interest — which the Court did not find the least bit disqualifying (by definition, of course, since a litigant needs standing).

The U.S. Congress would not have to get its hands dirty at all by taking a fresh look at copyright law — even if it was motivated to do so by an agenda driven by Google.

This is because creating the database benefits everyone, forever (unlike a now vacant lot in Connecticut) and because the ‘harm’ to any affected individual is orders of magnitude below getting kicked out of your house.

If anything, one doesn’t even need to reflect on the contortions of Kelo to see how this can happen. My point was, there is a Kelo, so Google Books is a philosophical cake walk in comparison.

Posted by johncabell | Report as abusive

Google Books is not a library venture. It is like an online retail store where people can download “purchase” books for a fee.
Google cannot post books unless and until a legal agreement is signed by the author.
A common ground could be that Google may post a request for royalty on its various websites for authors to voluntarily opt-in or opt-out. If, in a pre-decided period by court, the author does not do either, Google may consider it as opt-in and use it for its purpose.

Posted by Vibes | Report as abusive

the city officials of New London and the Supreme Court should be kicked out of their homes for the greater good.

I am worried that some city official can just come and kick me out of my home just because.

Posted by JEYF | Report as abusive

Bunk. The author gives up book copyright to the publisher, unless they’re self-published pulp or e-books and Google is NOT publishing SPP or EB, so this is purely green mail.

‘difficultly-forged’ – another word for our Googlexicon.

Posted by Chip_H | Report as abusive

@Vibes: That’s pretty much what the Author’s Guild settlement does — and Chin said ‘notice’ was fine.

Under the agreement (which cost Google $125 million), there is no time limitation to make a claim whatsoever, and any money Google collects is held in escrow for an legitimate rights-holder who emerges, whenever that is.

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