The Case For Goliath
The Big Money
The latest wrinkle in the fight against Big Bad Google, though, is the argument that Book Search violates not the rights of authors and publishers who seek to profit from their books but the rights of those who do not. This argument is laid out, for instance, by UC Berkeley law professor Pamela Samuelson, who contends that many authors, particularly academic scholars, would “much rather make their works on an open access basis” than sign up for the (probably small) royalties they would get through the current agreement. This is not based entirely on misunderstanding, and it does have a grain of truth to it. The problem with it, though, is that the people making the argument are really a lot less interested in the rights of authors than they are in the ability of universities to get cheap access to Google's database.
On this, though, Google's position is totally in accord with that of the critics. As Samuelson admits, Google supports legislation that would make orphan works more widely available. The beef here is not with Google, but with extensions to copyright that have kept some books out of the public domain even after the authors have died and the publishers have ceased to exist.
Settling the orphan books issue, however, won't really satisfy the critics, because it would still leave unaddressed the qualms of those folks whom Samuelson talks about who can be found and do want to include their work in Google's database but want to do so in a noncommercial way. In thinking about this group, you need to be careful. The agreement specifically lets authors set the price for the public to purchase their work, and there seems to be nothing in the agreement that keeps them from setting the price at zero. Whatever slight ambiguity might exist about this will soon enough be moot. Have no doubt that if a writer wants to give her work away, Google will make it easy for her.
So what someone like Samuelson means here by “open access” is more limited than you might think at first glance. The authors whose rights are at issue here are not the ones who are happy to just use Book Search as a convenient platform to distribute their work free of charge. It's those who may not—but do want it to be available to libraries and universities as part of a free or inexpensive subscription plan. This seems to be the position of thegroup of senior faculty membersat the University of California who've argued that their main interests as academic authors is ensuring wider access to Google's library.
I think that the group of academics who feel that including their books in a “commercial” database infringes on their rightsis a smaller one than UC Berkeley's Samuelson assumes—academics have long put up with publishing in journals whose publishers routinely gouge academia with jaw-dropping prices. Nonetheless, their interest in this is legitimate. Under Google's proposed agreement, it's just not possible for someone who wants to do this to use her willingness to make her work freely available to institutions to lower the subscription prices that libraries and universities will pay. So, indeed, the interests of this group are not perfectly served.9/9/2009