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| DATE | 2017-04-28 |
| FROM | Ruben Safir
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| SUBJECT | Re: [Hangout of NYLXS] death of culture
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Torching the Modern-Day Library of Alexandria
“Somewhere at Google there is a database containing 25 million books and
nobody is allowed to read them.”
meshaphoto / Getty / Konstantin Orlov / Shutterstock / Katie Martin /
The Atlantic
James Somers Apr 20, 2017 Technology
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You were going to get one-click access to the full text of nearly every
book that’s ever been published. Books still in print you’d have to pay
for, but everything else—a collection slated to grow larger than the
holdings at the Library of Congress, Harvard, the University of
Michigan, at any of the great national libraries of Europe—would have
been available for free at terminals that were going to be placed in
every local library that wanted one.
At the terminal you were going to be able to search tens of millions of
books and read every page of any book you found. You’d be able to
highlight passages and make annotations and share them; for the first
time, you’d be able to pinpoint an idea somewhere inside the vastness of
the printed record, and send somebody straight to it with a link. Books
would become as instantly available, searchable, copy-pasteable—as alive
in the digital world—as web pages.
It was to be the realization of a long-held dream. “The universal
library has been talked about for millennia,” Richard Ovenden, the head
of Oxford’s Bodleian Libraries, has said. “It was possible to think in
the Renaissance that you might be able to amass the whole of published
knowledge in a single room or a single institution.” In the spring of
2011, it seemed we’d amassed it in a terminal small enough to fit on a desk.
“This is a watershed event and can serve as a catalyst for the
reinvention of education, research, and intellectual life,” one eager
observer wrote at the time.
On March 22 of that year, however, the legal agreement that would have
unlocked a century’s worth of books and peppered the country with access
terminals to a universal library was rejected under Rule 23(e)(2) of the
Federal Rules of Civil Procedure by the U.S. District Court for the
Southern District of New York.
When the library at Alexandria burned it was said to be an
“international catastrophe.” When the most significant humanities
project of our time was dismantled in court, the scholars, archivists,
and librarians who’d had a hand in its undoing breathed a sigh of
relief, for they believed, at the time, that they had narrowly averted
disaster.
* * *
Google’s secret effort to scan every book in the world, codenamed
“Project Ocean,” began in earnest in 2002 when Larry Page and Marissa
Mayer sat down in the office together with a 300-page book and a
metronome. Page wanted to know how long it would take to scan more than
a hundred-million books, so he started with one that was lying around.
Using the metronome to keep a steady pace, he and Mayer paged through
the book cover-to-cover. It took them 40 minutes.
Page had always wanted to digitize books. Way back in 1996, the student
project that eventually became Google—a “crawler” that would ingest
documents and rank them for relevance against a user’s query—was
actually conceived as part of an effort “to develop the enabling
technologies for a single, integrated and universal digital library.”
The idea was that in the future, once all books were digitized, you’d be
able to map the citations among them, see which books got cited the
most, and use that data to give better search results to library
patrons. But books still lived mostly on paper. Page and his research
partner, Sergey Brin, developed their popularity-contest-by-citation
idea using pages from the World Wide Web.
By 2002, it seemed to Page like the time might be ripe to come back to
books. With that 40-minute number in mind, he approached the University
of Michigan, his alma mater and a world leader in book scanning, to find
out what the state of the art in mass digitization looked like. Michigan
told Page that at the current pace, digitizing their entire collection—7
million volumes—was going to take about a thousand years. Page, who’d by
now given the problem some thought, replied that he thought Google could
do it in six.
Every weekday, semi trucks full of books would pull up at designated
Google scanning centers.
He offered the library a deal: You let us borrow all your books, he
said, and we’ll scan them for you. You’ll end up with a digital copy of
every volume in your collection, and Google will end up with access to
one of the great untapped troves of data left in the world. Brin put
Google’s lust for library books this way: “You have thousands of years
of human knowledge, and probably the highest-quality knowledge is
captured in books.” What if you could feed all the knowledge that’s
locked up on paper to a search engine?
By 2004, Google had started scanning. In just over a decade, after
making deals with Michigan, Harvard, Stanford, Oxford, the New York
Public Library, and dozens of other library systems, the company,
outpacing Page’s prediction, had scanned about 25 million books. It cost
them an estimated $400 million. It was a feat not just of technology but
of logistics.
Every weekday, semi trucks full of books would pull up at designated
Google scanning centers. The one ingesting Stanford’s library was on
Google’s Mountain View campus, in a converted office building. The books
were unloaded from the trucks onto the kind of carts you find in
libraries and wheeled up to human operators sitting at one of a few
dozen brightly lit scanning stations, arranged in rows about six to
eight feet apart.
The stations—which didn’t so much scan as photograph books—had been
custom-built by Google from the sheet metal up. Each one could digitize
books at a rate of 1,000 pages per hour. The book would lie in a
specially designed motorized cradle that would adjust to the spine,
locking it in place. Above, there was an array of lights and at least
$1,000 worth of optics, including four cameras, two pointed at each half
of the book, and a range-finding LIDAR that overlaid a three-dimensional
laser grid on the book’s surface to capture the curvature of the paper.
The human operator would turn pages by hand—no machine could be as quick
and gentle—and fire the cameras by pressing a foot pedal, as though
playing at a strange piano.
What made the system so efficient is that it left so much of the work to
software. Rather than make sure that each page was aligned perfectly,
and flattened, before taking a photo, which was a major source of delays
in traditional book-scanning systems, cruder images of curved pages were
fed to de-warping algorithms, which used the LIDAR data along with some
clever mathematics to artificially bend the text back into straight lines.
At its peak, the project involved about 50 full-time software engineers.
They developed optical character-recognition software for turning raw
images into text; they wrote de-warping and color-correction and
contrast-adjustment routines to make the images easier to process; they
developed algorithms to detect illustrations and diagrams in books, to
extract page numbers, to turn footnotes into real citations, and, per
Brin and Page’s early research, to rank books by relevance. “Books are
not part of a network,” Dan Clancy, who was the engineering director on
the project during its heyday, has said. “There is a huge research
challenge, to understand the relationship between books.”
At a time when the rest of Google was obsessed with making apps more
“social”—Google Plus was released in 2011—Books was seen by those who
worked on it as one of those projects from the old era, like Search
itself, that made good on the company’s mission “to organize the world’s
information and make it universally accessible and useful.”
It was the first project that Google ever called a “moonshot.” Before
the self-driving car and Project Loon—their effort to deliver Internet
to Africa via high-altitude balloons—it was the idea of digitizing books
that struck the outside world as a wide-eyed dream. Even some Googlers
themselves thought of the project as a boondoggle. “There were certainly
lots of folks at Google that while we were doing Google Book Search were
like, Why are we spending all this money on this project?,” Clancy said
to me. “Once Google started being a little more conscious about how it
was spending money, it was like, wait, you have $40 million a year, $50
million a year on the cost of scanning? It’s gonna cost us $300 to $400
million before we’re done? What are you thinking? But Larry and Sergey
were big supporters.”
In August 2010, Google put out a blog post announcing that there were
129,864,880 books in the world. The company said they were going to scan
them all.
Of course, it didn’t quite turn out that way. This particular moonshot
fell about a hundred-million books short of the moon. What happened was
complicated but how it started was simple: Google did that thing where
you ask for forgiveness rather than permission, and forgiveness was not
forthcoming. Upon hearing that Google was taking millions of books out
of libraries, scanning them, and returning them as if nothing had
happened, authors and publishers filed suit against the company,
alleging, as the authors put it simply in their initial complaint,
“massive copyright infringement.”
* * *
When Google started scanning, they weren’t actually setting out to build
a digital library where you could read books in their entirety; that
idea would come later. Their original goal was just to let you search
books. For books in copyright, all they would show you were “snippets,”
just a few sentences of context around your search terms. They likened
their service to a card catalog.
Google thought that creating a card catalog was protected by “fair use,”
the same doctrine of copyright law that lets a scholar excerpt someone’s
else’s work in order to talk about it. “A key part of the line between
what’s fair use and what’s not is transformation,” Google’s lawyer,
David Drummond, has said. “Yes, we’re making a copy when we digitize.
But surely the ability to find something because a term appears in a
book is not the same thing as reading the book. That’s why Google Books
is a different product from the book itself.”
It was important for Drummond to be right. Statutory damages for
“willful infringement” of a copyright can run as high as $150,000 for
each work infringed. Google’s potential liability for copying tens of
millions of books could have run into the trillions of dollars. “Google
had some reason to fear that it was betting the firm on its fair-use
defense,” Pamela Samuelson, a law professor at UC Berkeley, wrote in
2011. Copyright owners pounced.
They had good reason to. Instead of asking for anyone’s permission,
Google had plundered libraries. This seemed obviously wrong: If you
wanted to copy a book, you had to have the right to copy it—you had to
have the damn copyright. Letting Google get away with the wholesale
copying of every book in America struck them as setting a dangerous
precedent, one that might well render their copyrights worthless. An
advocacy group called the Authors Guild, and several book authors, filed
a class action lawsuit against Google on behalf of everyone with a U.S.
copyright interest in a book. (A group of publishers filed their own
lawsuit but joined the Authors Guild class action shortly thereafter.)
There’s actually a long tradition of technology companies disregarding
intellectual-property rights as they invent new ways to distribute
content. In the early 1900s, makers of the “piano rolls” that control
player pianos ignored copyrights in sheet music and were sued by music
publishers. The same thing happened with makers of vinyl records and
early purveyors of commercial radio. In the 60s, cable operators
re-aired broadcast TV signals without first getting permission and found
themselves in costly litigation. Movie studios sued VCR makers. Music
labels sued KazaA and Napster.
As Tim Wu pointed out in a 2003 law review article, what usually becomes
of these battles—what happened with piano rolls, with records, with
radio, and with cable—isn’t that copyright holders squash the new
technology. Instead, they cut a deal and start making money from it.
Often this takes the form of a “compulsory license” in which, for
example, musicians are required to license their work to the piano-roll
maker, but in exchange, the piano-roll maker has to pay a fixed fee, say
two cents per song, for every roll they produce. Musicians get a new
stream of income, and the public gets to hear their favorite songs on
the player piano. “History has shown that time and market forces often
provide equilibrium in balancing interests,” Wu writes.
But even if everyone typically ends up ahead, each new cycle starts with
rightsholders fearful they’re being displaced by the new technology.
When the VCR came out, film executives lashed out. “I say to you that
the VCR is to the American film producer and the American public as the
Boston strangler is to the woman home alone,” Jack Valenti, then the
president of the MPAA, testified before Congress. The major studios sued
Sony, arguing that with the VCR, the company was trying to build an
entire business on intellectual property theft. But Sony Corp. of
America v. Universal City Studios, Inc. became famous for its holding
that as long as a copying device was capable of “substantial
noninfringing uses”—like someone watching home movies—its makers
couldn’t be held liable for copyright infringement.
“There was an opportunity to do something extraordinary for readers and
academics in this country.”
The Sony case forced the movie industry to accept the existence of VCRs.
Not long after, they began to see the device as an opportunity. “The VCR
turned out to be one of the most lucrative inventions—for movie
producers as well as hardware manufacturers—since movie projectors,” one
commentator put it in 2000.
It only took a couple of years for the authors and publishers who sued
Google to realize that there was enough middle ground to make everyone
happy. This was especially true when you focused on the back catalog, on
out-of-print works, instead of books still on store shelves. Once you
made that distinction, it was possible to see the whole project in a
different light. Maybe Google wasn’t plundering anyone’s work. Maybe
they were giving it a new life. Google Books could turn out to be for
out-of-print books what the VCR had been for movies out of the theater.
If that was true, you wouldn’t actually want to stop Google from
scanning out-of-print books—you’d want to encourage it. In fact, you’d
want them to go beyond just showing snippets to actually selling those
books as digital downloads. Out-of-print books, almost by definition,
were commercial dead weight. If Google, through mass digitization, could
make a new market for them, that would be a real victory for authors and
publishers. “We realized there was an opportunity to do something
extraordinary for readers and academics in this country,” Richard
Sarnoff, who was then Chairman of the American Association of
Publishers, said at the time. “We realized that we could light up the
out-of-print backlist of this industry for two things: discovery and
consumption.”
But once you had that goal in mind, the lawsuit itself—which was about
whether Google could keep scanning and displaying snippets—began to seem
small time. Suppose the Authors Guild won: they were unlikely to recoup
anything more than the statutory minimum in damages; and what good would
it do to stop Google from providing snippets of old books? If anything
those snippets might drive demand. And suppose Google won: Authors and
publishers would get nothing, and all readers would get for out-of-print
books would be snippets—not access to full texts.
The plaintiffs, in other words, had gotten themselves into a pretty
unusual situation. They didn’t want to lose their own lawsuit—but they
didn’t want to win it either.
* * *
The basic problem with out-of-print books is that it’s unclear who owns
most of them. An author might have signed a book deal with their
publisher 40 years ago; that contract stipulated that the rights revert
to the author after the book goes out of print, but required the author
to send a notice to that effect, and probably didn’t say anything about
digital rights; and all this was recorded on some pieces of paper that
nobody has.
It’s been estimated that about half the books published between 1923 and
1963 are actually in the public domain—it’s just that no one knows which
half. Copyrights back then had to be renewed, and often the rightsholder
wouldn’t bother filing the paperwork; if they did, the paperwork could
be lost. The cost of figuring out who owns the rights to a given book
can end up being greater than the market value of the book itself. “To
have people go and research each one of these titles,” Sarnoff said to
me, “It’s not just Sisyphean—it’s an impossible task economically.” Most
out-of-print books are therefore locked up, if not by copyright then by
inconvenience.
The tipping point toward a settlement of Authors Guild v. Google was the
realization that it offered a way to skirt this problem entirely.
Authors Guild was a class action lawsuit, and the class included
everyone who held an American copyright in one or more books. In a class
action, the named plaintiffs litigate on behalf of the whole class
(though anyone who wants to can opt out).
So a settlement of the Authors Guild case could theoretically bind just
about every author and publisher with a book in an American library. In
particular, you could craft a deal in which copyright owners, as a
class, agreed to release any claims against Google for scanning and
displaying their books, in exchange for a cut of the revenue on sales of
those books.
“If you have a kind of an institutional problem,” said Jeff Cunard, a
partner at Debevoise & Plimpton who represented the publishers in the
case, “you can address the issue through a class-action settlement
mechanism, which releases all past claims and develops a solution on a
going-forward basis. And I think the genius here was of those who saw
this as a way of addressing the problem of out-of-print books and
liberating them from the dusty corners to which they’d been consigned.”
It was a kind of hack. If you could get the class on board with your
settlement, and if you could convince a judge to approve it—a step
required by law, because you want to make sure the class representatives
are acting in the class’s best interests—then you could in one stroke
cut the Gordian knot of ambiguous rights to old books. With the class
action settlement, authors and publishers who stayed in the class would
in effect be saying to Google, “go ahead.”
Naturally, they’d have to get something in return. And that was the
clever part. At the heart of the settlement was a collective licensing
regime for out-of-print books. Authors and publishers could opt out
their books at any time. For those who didn’t, Google would be given
wide latitude to display and sell their books, but in return, 63 percent
of the revenues would go into escrow with a new entity called the Book
Rights Registry. The Registry’s job would be to distribute funds to
rightsholders as they came forward to claim their works; in ambiguous
cases, part of the money would be used to figure out who actually owned
the rights.
“Book publishing isn’t the healthiest industry in the world, and
individual authors don’t make any money out of out-of-print books,”
Cunard said to me. “Not that they would have made gazillions of dollars”
with Google Books and the Registry, “but they would at least have been
paid something for it. And most authors actually want their books to be
read.”
What became known as the Google Books Search Amended Settlement
Agreement came to 165 pages and more than a dozen appendices. It took
two and a half years to hammer out the details. Sarnoff described the
negotiations as “four-dimensional chess” between the authors,
publishers, libraries, and Google. “Everyone involved,” he said to me,
“and I mean everyone—on all sides of this issue—thought that if we were
going to get this through, this would be the single most important thing
they did in their careers.” Ultimately the deal put Google on the hook
for about $125 million, including a one-time $45 million payout to the
copyright holders of books it had scanned—something like $60 per
book—along with $15.5 million in legal fees to the publishers, $30
million to the authors, and $34.5 million toward creating the Registry.
But it also set the terms for how out-of-print books, newly freed, would
be displayed and sold. Under the agreement, Google would be able to
preview up to 20 percent of a given book to entice individual users to
buy, and it would be able to offer downloadable copies for sale, with
the prices determined by an algorithm or by the individual rightsholder,
in price bins initially ranging from $1.99 to $29.99. All the
out-of-print books would be packaged into an “institutional subscription
database” that would be sold to universities, where students and faculty
could search and read the full collection for free. And in §4.8(a), the
agreement describes in bland legalese the creation of an incomparable
public utility, the “public-access service” that would be deployed on
terminals to local libraries across the country.
Sorting out the details had taken years of litigation and then years of
negotiation, but now, in 2011, there was a plan—a plan that seemed to
work equally well for everyone at the table. As Samuelson, the Berkeley
law professor, put it in a paper at the time, “The proposed settlement
thus looked like a win-win-win: the libraries would get access to
millions of books, Google would be able to recoup its investment in GBS,
and authors and publishers would get a new revenue stream from books
that had been yielding zero returns. And legislation would be
unnecessary to bring about this result.”
In this, she wrote, it was “perhaps the most adventuresome class action
settlement ever attempted.” But to her way of thinking, that was the
very reason it should fail.
* * *
The publication of the Amended Settlement Agreement to the Authors Guild
case was headline news. It was quite literally a big deal—a deal that
would involve the shakeup of an entire industry. Authors, publishers,
Google’s rivals, legal scholars, librarians, the U.S. government, and
the interested public paid attention to the case’s every move. When the
presiding judge, Denny Chin, put out a call for responses to the
proposed settlement, responses came in droves.
Those who had been at the table crafting the agreement had expected some
resistance, but not the “parade of horribles,” as Sarnoff described it,
that they eventually saw. The objections came in many flavors, but they
all started with the sense that the settlement was handing to Google,
and Google alone, an awesome power. “Did we want the greatest library
that would ever exist to be in the hands of one giant corporation, which
could really charge almost anything it wanted for access to it?”, Robert
Darnton, then president of Harvard’s library, has said.
Darnton had initially been supportive of Google’s scanning project, but
the settlement made him wary. The scenario he and many others feared was
that the same thing that had happened to the academic journal market
would happen to the Google Books database. The price would be fair at
first, but once libraries and universities became dependent on the
subscription, the price would rise and rise until it began to rival the
usurious rates that journals were charging, where for instance by 2011 a
yearly subscription to the Journal of Comparative Neurology could cost
as much as $25,910.
Although academics and library enthusiasts like Darnton were thrilled by
the prospect of opening up out-of-print books, they saw the settlement
as a kind of deal with the devil. Yes, it would create the greatest
library there’s ever been—but at the expense of creating perhaps the
largest bookstore, too, run by what they saw as a powerful monopolist.
In their view, there had to be a better way to unlock all those books.
“Indeed, most elements of the GBS settlement would seem to be in the
public interest, except for the fact that the settlement restricts the
benefits of the deal to Google,” the Berkeley law professor Pamela
Samuelson wrote.
Certainly Google’s competitors felt put out by the deal. Microsoft,
predictably, argued that it would further cement Google’s position as
the world’s dominant search engine, by making it the only one that could
legally mine out-of-print books. By using those books in results for
user’s long-tail queries, Google would have an unfair advantage over
competitors. Google’s response to this objection was simply that anyone
could scan books and show them in search results if they wanted—and that
doing so was fair use. (Earlier this year, a Second Circuit court ruled
finally that Google’s scanning of books and display of snippets was, in
fact, fair use.)
“There was this hypothesis that there was this huge competitive
advantage,” Clancy said to me, regarding Google’s access to the books
corpus. But he said that the data never ended up being a core part of
any project at Google, simply because the amount of information on the
web itself dwarfed anything available in books. “You don’t need to go to
a book to know when Woodrow Wilson was born,” he said. The books data
was helpful, and interesting for researchers, but “the degree to which
the naysayers characterized this as being the strategic motivation for
the whole project—that was malarkey.”
Amazon, for its part, worried that the settlement allowed Google to set
up a bookstore that no one else could. Anyone else who wanted to sell
out-of-print books, they argued, would have to clear rights on a
book-by-book basis, which was as good as impossible, whereas the class
action agreement gave Google a license to all of the books at once.
This objection got the attention of the Justice Department, in
particular the Antitrust division, who began investigating the
settlement. In a statement filed with the court, the DOJ argued that the
settlement would give Google a de facto monopoly on out-of-print books.
That’s because for Google’s competitors to get the same rights to those
books, they’d basically have to go through the exact same bizarre
process: scan them en masse, get sued in a class action, and try to
settle. “Even if there were reason to think history could repeat itself
in this unlikely fashion,” the DOJ wrote, “it would scarcely be sound
policy to encourage deliberate copyright violations and additional
litigation.”
Google’s best defense was that the whole point of antitrust law was to
protect consumers, and, as one of their lawyers put it, “From the
perspective of consumers, one way to get something is unquestionably
better than no way to get it at all.” Out-of-print books had been
totally inaccessible online; now there’d be a way to buy them. How did
that hurt consumers? A person closely involved in the settlement said to
me, “Each of the publishers would go into the Antitrust Division and say
well but look, Amazon has 80 percent of the e-book market. Google has 0
percent or 1 percent. This is allowing someone else to compete in the
digital books space against Amazon. And so you should be regarding this
as pro-competitive, not anti-competitive. Which seemed also very
sensible to me. But it was like they were talking to a brick wall. And
that reaction was shameful.”
The DOJ held fast. In some ways, the parties to the settlement didn’t
have a good way out: no matter how “non-exclusive” they tried to make
the deal, it was in effect a deal that only Google could get—because
Google was the only defendant in the case. For a settlement in a class
action titled Authors Guild v. Google to include not just Google but,
say, every company that wanted to become a digital bookseller, would be
to stretch the class action mechanism past its breaking point.
This was a point that the DOJ kept coming back to. The settlement was
already a stretch, they argued: the original case had been about whether
Google could show snippets of books it had scanned, and here you had a
settlement agreement that went way beyond that question to create an
elaborate online marketplace, one that depended on the indefinite
release of copyrights by authors and publishers who might be difficult
to find, particularly for books long out of print. “It is an attempt,”
they wrote, “to use the class-action mechanism to implement
forward-looking business arrangements that go far beyond the dispute
before the Court in this litigation.”
The DOJ objections left the settlement in a double bind: Focus the deal
on Google and you get accused of being anticompetitive. Try to open it
up and you get accused of stretching the law governing class actions.
The lawyers who had crafted the settlement tried to thread the needle.
The DOJ acknowledged as much. “The United States recognizes that the
parties to the ASA are seeking to use the class action mechanism to
overcome legal and structural challenges to the emergence of a robust
and diverse marketplace for digital books,” they wrote. “Despite this
worthy goal, the United States has reluctantly concluded that use of the
class-action mechanism in the manner proposed by the ASA is a bridge too
far.”
Their argument was compelling, but the fact that the settlement was
ambitious didn’t mean it was illegal—just unprecedented. Years later,
another class-action settlement that involved opt-out, “forward-looking
business arrangements” very similar to the kind set up by the Google
settlement was approved by another district court. That case involved
the prospective exploitation of publicity rights of retired NFL players;
the settlement made those rights available to an entity that would
license them and distribute the proceeds. “What was interesting about
it,” says Cunard, who was also involved in that litigation, “was that
not a single opponent of the settlement ever raised Judge Chin’s
decision or any of the oppositions to it with respect to that settlement
being ‘beyond the scope of the pleadings.’” Had that case been decided
ten years ago, Cunard said, it would have been “a very important and
substantial precedent,” significantly undercutting the “bridge too far”
argument against the Authors Guild agreement. “It demonstrates that the
law is a very fluid thing,” he said. “Somebody’s got to be first.”
In the end, the DOJ’s intervention likely spelled the end of the
settlement agreement. No one is quite sure why the DOJ decided to take a
stand instead of remaining neutral. Dan Clancy, the Google engineering
lead on the project who helped design the settlement, thinks that it was
a particular brand of objector—not Google’s competitors but “sympathetic
entities” you’d think would be in favor of it, like library enthusiasts,
academic authors, and so on—that ultimately flipped the DOJ. “I don’t
know how the settlement would have transpired if those naysayers hadn’t
been so vocal,” he told me. “It’s not clear to me that if the libraries
and the Bob Darntons and the Pam Samuelsons of the world hadn’t been so
active that the Justice Department ever would have become involved,
because it just would have been Amazon and Microsoft bitching about
Google. Which is like yeah, tell me something new.”
Whatever the motivation, the DOJ said its piece and that seemed to carry
the day. In his ruling concluding that the settlement was not “fair,
adequate, and reasonable” under the rules governing class actions, Judge
Denny Chin recited the DOJ’s objections and suggested that to fix them,
you’d either have to change the settlement to be an opt-in
arrangement—which would render it toothless—or try to accomplish the
same thing in Congress.
“While the digitization of books and the creation of a universal digital
library would benefit many,” Chin wrote in his decision, “the ASA would
simply go too far.”
* * *
At the close of the “fairness hearing,” where people spoke for and
against the settlement, Judge Chin asked, as if merely out of curiosity,
just how many objections had there been? And how many people had opted
out of the class? The answers were more than 500, and more than 6,800.
Reasonable people could disagree about the legality of the settlement;
there were strong arguments on either side, and it was by no means
obvious to observers which side Judge Chin was going to come down on.
What seemed to turn the tide against the settlement was the reaction of
the class itself. “In my more than twenty-five years of practice in
class action litigation, I’ve never seen a settlement reacted to that
way, with that many objectors,” said Michael Boni, who was the lead
negotiator for the authors class in the case. That strong reaction was
what likely led to the DOJ’s intervention; it turned public opinion
against the agreement; and it may have led Chin to look for ways to kill
it. After all, the question before him was whether the agreement was
fair to class members. The more class members came out of the woodwork,
and the more upset they seemed to be, the more reason he’d have to think
that the settlement didn’t represent their interests.
The irony is that so many people opposed the settlement in ways that
suggested they fundamentally believed in what Google was trying to do.
One of Pamela Samuelson’s main objections was that Google was going to
be able to sell books like hers, whereas she thought they should be made
available for free. (The fact that she, like any author under the terms
of the settlement, could set her own books’ price to zero was not
consolation enough, because “orphan works” with un-findable authors
would still be sold for a price.) In hindsight, it looks like the
classic case of perfect being the enemy of the good: surely having the
books made available at all would be better than keeping them locked
up—even if the price for doing so was to offer orphan works for sale. In
her paper concluding that the settlement went too far, Samuelson herself
even wrote, “It would be a tragedy not to try to bring this vision to
fruition, now that it is so evident that the vision is realizable.”
“This is not important enough for the Congress to somehow adjust
copyright law.”
Many of the objectors indeed thought that there would be some other way
to get to the same outcome without any of the ickiness of a class action
settlement. A refrain throughout the fairness hearing was that releasing
the rights of out-of-print books for mass digitization was more properly
“a matter for Congress.” When the settlement failed, they pointed to
proposals by the U.S. Copyright Office recommending legislation that
seemed in many ways inspired by it, and to similar efforts in the Nordic
countries to open up out-of-print books, as evidence that Congress could
succeed where the settlement had failed.
Of course, nearly a decade later, nothing of the sort has actually
happened. “It has got no traction,” Cunard said to me about the
Copyright Office’s proposal, “and is not going to get a lot of traction
now I don’t think.” Many of the people I spoke to who were in favor of
the settlement said that the objectors simply weren’t
practical-minded—they didn’t seem to understand how things actually get
done in the world. “They felt that if not for us and this lawsuit, there
was some other future where they could unlock all these books, because
Congress would pass a law or something. And that future... as soon as
the settlement with Guild, nobody gave a shit about this anymore,”
Clancy said to me.
It certainly seems unlikely that someone is going to spend political
capital—especially today—trying to change the licensing regime for
books, let alone old ones. “This is not important enough for the
Congress to somehow adjust copyright law,” Clancy said. “It’s not going
to get anyone elected. It’s not going to create a whole bunch of jobs.”
It’s no coincidence that a class action against Google turned out to be
perhaps the only plausible venue for this kind of reform: Google was the
only one with the initiative, and the money, to make it happen. “If you
want to look at this in a raw way,” Allan Adler, in-house counsel for
the publishers, said to me, “a deep pocketed, private corporate actor
was going to foot the bill for something that everyone wanted to see.”
Google poured resources into the project, not just to scan the books but
to dig up and digitize old copyright records, to negotiate with authors
and publishers, to foot the bill for a Books Rights Registry. Years
later, the Copyright Office has gotten nowhere with a proposal that
re-treads much the same ground, but whose every component would have to
be funded with Congressional appropriations.
I asked Bob Darnton, who ran Harvard’s library during the Google Books
litigation and who spoke out against the settlement, whether he had any
regrets about what ended up happening. “Insofar as I have a regret, it
is that the attempts to out-Google Google are so limited by copyright
law,” he said. He’s been working on another project to scan library
books; the scanning has been limited to books in the public domain. “I’m
in favor of copyright, don’t get me wrong, but really to leave books out
of the public domain for more than a century—to keep most American
literature behind copyright barrier,” he said, “I think is crazy.”
The first copyright statute in the United States, passed in 1790, was
called An Act for the Encouragement of Learning. Copyright terms were to
last fourteen years, with the option to renew for another fourteen, but
only if the author was alive at the end of the first term. The idea was
to strike a “pragmatic bargain” between authors and the reading public.
Authors would get a limited monopoly on their work so they could make a
living from it; but their work would retire quickly into the public domain.
Somewhere at Google there is a database containing 25 million books and
nobody is allowed to read them.
Copyright terms have been radically extended in this country largely to
keep pace with Europe, where the standard has long been that copyrights
last for the life of the author plus 50 years. But the European idea,
“It’s based on natural law as opposed to positive law,” Lateef Mtima, a
copyright scholar at Howard University Law School, said. “Their whole
thought process is coming out of France and Hugo and those guys that
like, you know, ‘My work is my enfant,’” he said, “and the state has
absolutely no right to do anything with it—kind of a Lockean point of
view.” As the world has flattened, copyright laws have converged, lest
one country be at a disadvantage by freeing its intellectual products
for exploitation by the others. And so the American idea of using
copyright primarily as a vehicle, per the constitution, “to promote the
Progress of Science and useful Arts,” not to protect authors, has eroded
to the point where today we’ve locked up nearly every book published
after 1923.
“The greatest tragedy is we are still exactly where we were on the
orphan works question. That stuff is just sitting out there gathering
dust and decaying in physical libraries, and with very limited
exceptions,” Mtima said, “nobody can use them. So everybody has lost and
no one has won.”
After the settlement failed, Clancy told me that at Google “there was
just this air let out of the balloon.” Despite eventually winning
Authors Guild v. Google, and having the courts declare that displaying
snippets of copyrighted books was fair use, the company all but shut
down its scanning operation.
It was strange to me, the idea that somewhere at Google there is a
database containing 25-million books and nobody is allowed to read them.
It’s like that scene at the end of the first Indiana Jones movie where
they put the Ark of the Covenant back on a shelf somewhere, lost in the
chaos of a vast warehouse. It’s there. The books are there. People have
been trying to build a library like this for ages—to do so, they’ve
said, would be to erect one of the great humanitarian artifacts of all
time—and here we’ve done the work to make it real and we were about to
give it to the world and now, instead, it’s 50 or 60 petabytes on disk,
and the only people who can see it are half a dozen engineers on the
project who happen to have access because they’re the ones responsible
for locking it up.
I asked someone who used to have that job, what would it take to make
the books viewable in full to everybody? I wanted to know how hard it
would have been to unlock them. What’s standing between us and a digital
public library of 25 million volumes?
You’d get in a lot of trouble, they said, but all you’d have to do, more
or less, is write a single database query. You’d flip some access
control bits from off to on. It might take a few minutes for the command
to propagate
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www2.mrbrklyn.com/resources - Unpublished Archive
http://www.coinhangout.com - coins!
http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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