Background

Straight from Judge Chin’s opinion, “In 2004, Google announced that it had entered into agreements with several major research libraries to digitally copy books and other writings in their collections. Since then, Google has scanned more than 12 million books. It has delivered digital copies to the participating libraries, created an electronic database of books, and made text available for online searching.”. Google’s project affects so many people outside the also has policy for copyright holders to contact them and opt-out of the digitization, indexing, and republishing process should they object to their work being republished. Enter the usual benefits from widespread sharing and easy access to digital information, but wait—isn’t this just well-funded widespread commercial copyright infringement?

Why should this project deserve professional participation from libraries but not well-organized grassroots networks sharing copyrighted digital works without license? Or why didn’t the old Napster system get librarian’s help when they effectively helped people share digital copies of copyrighted sound recordings without license?

Usually when someone goes to the trouble to distribute a huge collection of copyrighted work without license they’re called on the carpet for it and stopped, typically with a settlement that pays off some allegedly representative organization. In this case a lot of people found fault with the idea that Google would be given (apparently exclusive) permission to digitize and reproduce (in part or whole) lots of books. They filed letters describing their views to Judge Chin. But in this case I don’t see anyone calling for criminal punishments for well-organized corporate, commercial, copyright infringement. Where’s the call to talk to US Congresspeople about increasing penalties for corpoate copyright abuse? Apparently it’s okay to be a corporate copyright infringer but not a grassroots copyright infringer.

Various takes

Brewster Kahle of the Internet Archive wrote about this highlighting the advantage of decentralized dissemination of the works.

We are in favor of building a digital library system that has many winners, but the Google book settlement seems like a bridge too far. We are sorry that it had to go this way, but the monopolistic aspects of the settlement do seem problematic.

That copyright holders are being spoken for strikes me as a greater problem with the proposed settlement; as the judge said, “Absent class members who fail to opt out will be deemed to have released their rights even as to future infringing conduct.” due to the opt-in nature of this settlement. The judge rightly saw this as ridiculous because “A copyright owner’s right to exclude others from using his property is fundamental and beyond dispute.” and “it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.”.

I appreciate the interest of building a digital library but I’m not sorry the settlement was rejected because it was preposterous. Until copyright law is changed to allow non-commercial verbatim copying and distribution in any medium for all published works (which I think copyright law should allow), I don’t see why librarians would (as many libraries are) handing over books still in copyright to be scanned and made a part of Google’s collection. The US can have whatever copyright policy its citizens wish to have, so go about changing the law and making it allow what you really want to do. Librarians must know they don’t have license to reproduce another’s work regardless of the benefit to the public; this can’t possibly be news to them; is this not contributory copyright infringement? These concerns seem far more important to me than the monopoly for Google this settlement attempted to create because I imagine the monopoly wouldn’t last for long had it been granted—how hard could it be to argue that some other party should get to infringe copyrights like Google has been doing?

The EFF acknowledges that its argument against the settlement on the basis of loss of privacy was not, in the judge’s view, a reason to reject the settlement, but EFF still headlined its blog entry “Google Books Decision: “The Privacy Concerns are Real”” quoting a passage from the opinion. The privacy concerns struck me as a red herring; if other parties can leverage the same permission Google got (as I believe they’d eventually be able to do) there would be someone who would reproduce the works in a way that privacy is preserved (download a file from a place that doesn’t track you or get a copy from a friend and read it anywhere you want anytime). I too want to read privately but I don’t see this as being a particularly salient issue for this agreement. Any popular database has the same privacy issues EFF talks about Google’s book database having, but we don’t discourage people from building interesting databases. The more useful and easily-accessed a database is, the more people’s queries will reveal their intent in using the database. Is there something about this database unique to Google? Plenty of other organizations track accesses across time, users, and searched-for content.