WASHINGTON – After years of litigation over its Book Search project, Google’s October settlement with copyright holders has hardly ended the debate about its efforts to digitize millions of published works. Antitrust experts still wrangle over whether the mega search engine now has a monopoly on the breadth of human knowledge. Privacy activists worry about Google tracking our sometimes embarrassing reading habits -- don’t download the Hite Report, for heaven's sake! And, considerably lower on the totem pole of concerns, some worry that Google’s book scanners occasionally copy their hands and fingers in the act of digitization.
While the settlement gives lawyers and scholars fodder for debating the intricacies of often arcane antitrust law provisions, its real-world implications for university research libraries are already apparent, according to Jonathan Band, legal counsel for the Library Copyright Alliance, which represents thousands of libraries in three major associations. Speaking at a panel on the Google settlement at the National Press Club here Tuesday, Band said it is obvious that any library that hopes to remain competitive will be forced to purchase an institutional subscription from Google Book Search.
“[The university’s] faculty will insist upon it,” he said. “Its students will insist upon it.”
“There’s a product they have to have, and in essence there’s one supplier,” Band added.
The cost of institutional subscriptions, which will last for a limited period before renewal is necessary, will differ across institutions based in part on enrollment numbers, according to the settlement. Libraries that purchase subscription services will gain access to the full text of Google’s entire library, which now contains more than 7 million books. The search engine’s immodest goal from the outset, however, has been to eventually put the world’s written history at the public’s fingertips.
For all the concerns that Google’s Book Search provokes, there seems little argument that the basic concept -- broad-based access to knowledge -- serves an inherent good. Researchers are unsurprisingly excited by the possibilities presented by a searchable full-text database of obscure, forgotten works. But it is Google’s potential hold on those obscure works that most worries James Grimmelmann, an associate professor at New York Law School.
Grimmelmann is particularly concerned about the Google settlement’s treatment of so-called “orphan” works, a term used to describe books for whom the copyright owner may be unknown or nonexistent. Since copyright endures for 70 years beyond an author’s death, it's possible that an author’s grandchild or other relative may unknowingly hold a copyright, making it practically impossible to track him or her down.
Under the settlement, Google is permitted to presume it has the consent of any as-yet-undiscovered copyright owner -- insulating the company from costly legal challenges that another would-be book digitizer might invoke when scanning orphan works.
In the context of competition, the orphan works are “the thing [Google has] that no competitor could hope to match,” Grimmelmann said.
Grimmelmann’s concerns about orphan works are misguided and overblown, according to David Balto, senior fellow at the Center for American Progress. “Orphan” status is only bestowed upon books for which publishers see no viable market, and whose “parents” are “indifferent,” he said. Essentially, such works have little value, and therefore hardly give Google an advantage, Balto said.
While Grimmelmann readily praised the potential benefit of Google’s digitization project, he said the project’s social good does not erase his concerns about Google’s unfair advantage.
“We wouldn’t say a monopolist should be excused of particular acts of monopoly because it does other good things,” he said.
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