When it comes to Google Book Search, you've probably heard the basic plot repeated in half a dozen ways. On one side is Goliath—that's Google (GOOG)—that hopes to open the doors to the most massive digital library in history. On the other is a cadre of Davids (plus the not-so-small Amazon (AMZN) and Microsoft (MSFT)), fighting for the public interest and the rights of authors.
Two months ago in this column, I wrote a defense of Google's 141 page agreement with publishers and the Authors' Guild. I said then, and think even more strongly now, that much of the suspicion about the agreement comes from misunderstanding. Many folks miss that an author who accepts Google's terms still has the right to limit drastically how much of the book Google's users can see, to set the price that Google charges for access to her book, or simply to exclude the book entirely from almost every part of Google's service. She can sell digital downloads in the future, or not. She can give her work away by including the whole book in the free “preview.” (By default, books will show only 20 percent in the preview, but the settlement specifically lets authors raise this.)
Despite all this, critics of Book Search continue to argue that the deal Google signed with publishers and the Author's Guild is unfair to authors and other copyright holders. For authors who worry that the deal lets Google sell their books without giving them a fair share of the profits, this is based almost entirely on misunderstanding. In fact, you can get some idea of just how beneficial the deal is to authors from Amazon's contention that it creates a “cartel of authors and publishers” that will be able to set prices.
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.
To see this, you need a little history. Google's massive book scanning project was undertaken with the help of universities, who hoped (to their credit) to make their collections broadly available in a digital form. One of the implicit assumptions of those universities, though, was that this would make a database of print books available to academic scholars for free, or at least very inexpensively. That assumption was blown up when writers and publishers objected, leading to the agreement now under contention. Under this agreement, Google will sell access to the full database at market rates, based in part on the prices charged for other academic databases, and would pay copyright holders royalties.
This has led to the latest uproar. One of the points at issue here is the treatment of orphan works—that is, works that are still under copyright, but for which the author, publisher or rights holder (for instance, the author's descendants) genuinely can't be found. As it stands now, Google will collect royalties for the use of their work; those go to the author's registry, and after five years get distributed among the rights holders who can be found. This is a little silly. As a writer, I'm not rushing to give my work away for free, but if I were kidnapped by aliens and no longer around to collect the royalties, I'd probably rather it be made available to everyone for free than have Google charge for it and let someone else reap the profits.
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 the group of senior faculty members at 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.
Even granting this, however, I think there is enough reason to be very skeptical of how genuinely interested in the rights of authors the academics and librarians who bring up this argument are. The reason for this is another feature of the agreement, one of the few that makes me queasy, called “coupling.”
There are a great number of ways for copyright holders to shape Book Search's use of their work, but there is one thing that they cannot do. If a book is out of print and you want to sell it through Google, you must also make it available as part of the all-you-can-eat university and library subscription plans. There may be some ways around this. If you send Google a copy of your book and have them rescan it, you can join a “Google Partners” program and sell copies of your work without including it in the university database. But the terms of this are complicated and not fully clear. For instance, if your book is available only through a print-on -demand publisher it probably doesn't qualify. And the general aim is to make it comparatively difficult for authors to use Book Search to sell books but keep them out of the subscription plans.
The requirement that consumer book sales be “coupled” with the university and library subscription plans is a genuine limitation on the rights of authors. To think, though, that this requirement is driven by Google's needs is just wrong. That requirement is something that was important to the universities that participated in the book scan project and would like to make Google's subscription full text database as comprehensive as possible. In print, books are already exempt from the coupling requirement, and if many authors of out-of-print books were able to keep them out of the subscription plan as well, it could make the university database far less useful.
So the interests of authors of out-of-print books who don't like the coupling requirement are not perfectly served here, either. It's not clear that keeping a book out of the subscription plan would be a particularly wise choice. Author's Guild president Paul Aiken told me that he expects that sales of digital downloads and print-on-demand books through Google will eventually become a meaningful source of income for authors, but he thinks that royalties from the subscription plans will remain a bigger one in the foreseeable future. Still, it's easy to see why some authors might think otherwise and prefer to sell their work only a la carte.
What's telling here is that the coupling requirement is not an issue for the academic critics of Book Search. Some authors who don't want to be in the subscription databases, and some others who do want to be in the database but want the database itself to be noncommercial, have interests here that are worth thinking about and protecting. But the latest critics are very interested in the rights of the second, and not at all in those of the first.
Moreover, the problem of how to price a database of books to which some authors want to maximize access and with which others want to maximize royalties is a genuinely difficult one. It's especially difficult because authors might have different views on this at different times—as both the critics and the Authors' Guild's Aiken points out, authors are themselves scholars and researchers. On the other hand, the solution to the problem of how to deal with authors who want to sell their books a la carte and absolutely don't want the full text to be available is easy. It's to get rid of the coupling requirement.
You certainly won't hear this proposed in the recent round of objections. That's because the claim of concern for authors' rights in the abstract is actually, in practice here, a stalking-horse for the real motivation, which is creating as useful as possible a database of knowledge for scholars. This motivation is a very worthwhile one. In my last story about this, I wrote about the extraordinary richness of material that Google has already made available to the public by scanning and putting online works that are in the public domain. I'm as excited as anyoneby the possibilities held out by what will be the world's most important storehouse of written knowledge.
I recognize, however, that others might be less interested in this than in protecting their intellectual property. Obviously, as a writer, I take this seriously as well. And however great the public interest in this, it is troubling to me to conflate it with the rights of authors and claim that you are defending authors' rights when your real aim is (even for very worthy reasons) to subordinate them to the interests of universities.
One of the running themes in the Book Search debate has been the suspicion among academics both in the United States and abroad of Google's “commercial” aims, simply because they are commercial. But it seems to me that even for those who want to maximize access to the corpus of written works, it's worth thinking about how to turn Google's commercial aims to their advantage. Indeed, what bothers me so far about Google's efforts is just how resolutely wonkish and noncommercial its presentation has been.
The aim of having a massive database of written works is not only for it to exist but for it to be a living resource to which as many people as possible not only can turn but want to turn. Yet Google has so far failed to make Book Search—useful as it already is with its database of public-domain works—as appealing as commercial sites' (say, Amazon's). One of the reasons I look forward to the massive expansion of Google's program is that the libraries are full of books that are no less important, interesting, or relevant for being out of print. Some of those who worry that Google, or the publishers and authors who hammered out the Book Search agreement are too interested in selling books seem to forget that those whose aim is to sell books are often thebest equipped to entice folks to buy them—and to read them.
