Google Books settlement: a monopoly waiting to happen

October 10th, 2009
by jodi

Will Google Books create a monopoly? Some1 people think2 so. Brin claims it won’t:

If Google Books is successful, others will follow. And they will have an easier path: this agreement creates a books rights registry that will encourage rights holders to come forward and will provide a convenient way for other projects to obtain permissions.

-Sergey Brin, New York Times, A Library To Last Forever

Brin is wrong: the proposed Google Books settlement will not smooth the way for other digitization projects. It creates a red carpet for Google while leaving everyone else at risk of copyright infringement.

The safe harbor provisions apply only to Google. Anyone else who wants to use one of these books would face the draconian penalties of statutory copyright infringement if it turned out the book was actually still copyrighted. Even with all this effort, one will not be able to say with certainty that a book is in the public domain. To do that would require a legislative change – and not a negotiated settlement.

– Peter Hirtle, LibraryLawBlog: The Google Book Settlement and the Public Domain.

Monopoly is not the only risk. Others include3 reader privacy, access to culture, suitability for bulk and some research users (metadata, etc.). Too bad Brin isn’t acknowledging that!

Don’t know what all the fuss is with Google Books and the proposed settlement? Wired has a good outline from April.

  1. “Several European nations, including France and Germany, have expressed concern that the proposed settlement gives Google a monopoly in content. Since the settlement was the result of a class action against Google, it applies only to Google. Other companies would not be free to digitise books under the same terms.” (bolding mine) – Nigel Kendall, Times (UK) Online, Google Book Search: why it matters []
  2. “Google’s five-year head start and its relationships with libraries and publishers give it an effective monopoly: No competitor will be able to come after it on the same scale. Nor is technology going to lower the cost of entry. Scanning will always be an expensive, labor-intensive project.” (bolding mine) – Geoffrey Nunberg, Chronicle of Higher Education, Google’s Book Search: A Disaster for Scholars (pardon the paywall) []
  3. Of course there are lots of benefits, too! []

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Posted in books and reading, future of publishing, information ecosystem, intellectual freedom, library and information science | Comments (1)

  • Eric H says:

    The thing that really amazes me is that, despite his acknowledgment that it is a monopoly, Peter actually supports the settlement (see his Sept. post on the same blog). I’ve been really disappointed by how the library community (ALA in particular) has been so starstruck by Google that they are unwilling to call it out on something that is potentially so hurtful to them. David Nimmer, possibly the most important Copyright scholar living (pace William Patry), Marybeth Peters, the Register of Copyrights, and the EFF were among the many who flatly rejected the settlement. Why wasn’t the ALA among them?

    Brin makes the same case for fixing the Orphan Works problem that many others have. He’s right, of course, that we need to fix the problem. If Google were really concerned about liberating the world’s information, and not wanting a monopoly, they would be using their considerable resources not to cosy up with the AG, but either to continue to test their fair use argument, or to lobby for real legislative change. But Google is not in the business of information, they’re in the business of advertising, and advertising loves a monopoly.

    He misses many of the most important criticisms of the settlement. Among them: that the lack of an adversarial relationship throws real doubt on the legitimacy of the settlement class; that the opt-out regime flies in the face of the Berne Conventions’s “no formalities” requirement (not to mention existing U.S. law); and that the settlement removes any incentive the AG will have to negotiate with subsequent parties (as he says himself, other parties won’t have the same access to OWs) and for Congress to fix the law.

    There is also the risk of a unique (because of the monopoly) resource being controlled by one company who is at the mercy of profit. Is Brin really so naive as to think that he’s creating a library that will last forever? Environmental and digital preservation issues aside, they certainly haven’t shown much stewardship over the Usenet archive (see recent Wired story). If the money dries up, why should they pay any more attention to the Books?

    If Brin truly wishes there were a hundred others pursuing similar paths, as he says in his Op. Ed., he would be trying to fix the problem for everyone, not just himself. It would go a long way toward convincing me (at least) that the much hailed “Don’t be evil” mantra is anything more than window dressing.