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Google’s “Orphan Works”

Libraries have always been vital to me and my family.Libraries have always been vital to me and my family. Our local library, at the end of our street, was our second living room. Books have always been at the forefront of our daily lives. I remember once, after dinner with my parents in New York's Greenwich Village, we discovered their car had been stolen. I walked them to the train station so they could get home. My father grimaced, saying to my mother, "Dorrie, was my book on the front seat?" For years, my dad served on the board of directors of our local public library. For his decades of service, they held a dinner honoring him. At that point depending on a scooter for much of his moving around, he hauled himself up to the podium, unsteady from his multiple sclerosis, and said, "This is what sitting on a board for 25 years can do to you."

But there is a battle raging right now over the future of books in the digital age and over the role libraries will play. One case now before U.S. Federal Court, some say, may grant a practical monopoly on recorded human knowledge to global Internet search giant Google. The case is complex and dense with legalese, yet has attracted opposition from hundreds of individuals and groups from around the planet.

Google announced in 2004 its intention to digitally scan millions of books, to index their contents, and to make them available and searchable online. For old books for which the copyright expired, and thus are in the public domain, the entire contents of the book would be made available. For newer books, those published since 1923 for which copyright still exists, the book would still be online, but only viewable in small part, in what Google called "snippets." Two groups, The Authors Guild and the Association of American Publishers (AAP), filed lawsuits, alleging that the scanning and display violated copyright protections. In October 2008, the groups and Google announced a settlement to the lawsuits, dubbed the Google Book Settlement (GBS). Google would pay $125 million and create a "Books Rights Registry," a new organization that would help direct funds from the settlement and future revenue from book sales, to the copyright holders. Google would be empowered to not only display works, but also to become a massive, online, electronic bookstore.

A key component of the settlement grants Google, automatically, permission to scan, display, and sell books that are still in copyright but are deemed "out-of-print," and for which the copyright holder cannot be easily found. These are referred to as "orphan works." The status of orphan works has been the subject of much debate, and legislation has been proposed to make orphan works more available to the public. There are millions upon millions of these books, most being carefully preserved in libraries. While many would be interested in getting access to the orphan works, the GBS grants Google, a for-profit corporation, and Google alone, sole, legal access to digitize and sell these works.While many would be interested in getting access to the orphan works, the GBS grants Google, a for-profit corporation, and Google alone, sole, legal access to digitize and sell these works.

Stanford Law Professor Pamela Samuelson, one of the keenest observers of the conflict, wrote recently, "The Google Book Search settlement will be, if approved, the most significant book industry development in the modern era....[and] will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books."

Brewster Kahle is the founder of the Internet Archive, a digital library that aspires to provide "universal access to human knowledge." Already, the Internet Archive houses 150 billion web pages (it archives the entire World Wide Web about once every two months, and makes these historical snapshots of the Internet viewable), 200,000 movies, 400,000 audio recordings, and over 1.6 million texts. Kahle is opposed to the Google Book Settlement. To scan the millions of books, Google has to get the books somehow. Google offers to scan the holdings of large libraries, and to return a digital copy of each book for the use of each library. Not bad, right? Many libraries like the idea, since digitizing their holdings has to date proven to be too costly. But there are strings attached. Most of the original contracts between the libraries, which originally included the University of Michigan, Stanford, Oxford, Harvard, and the New York Public Library, remain secret. But the GBS lays out terms for libraries to participate. The digital books that Google scans and returns to a library, for example, will only be viewable on a computer terminal that Google provides. Public libraries will get one such terminal, for all their patrons. Universities will get one for every 10,000 students enrolled.

I asked Kahle how he sees the future of libraries. He told me,

Libraries as a physical place to go, I think will continue. But if this trend continues, if we let Google make a monopoly here, then what libraries are in terms of repositories of books, places that buy books, own them, be a guardian of them, will cease to exist. Libraries, going forward, may just be subscribers to a few monopoly corporations’ databases.

Kahle wrote in an op-ed piece published in the Washington Post, "For the cost of 60 miles of highway, we can have a 10 million-book digital library available to a generation that is growing up reading on-screen." Kahle's version of the digital library, which he and others are building collaboratively, is open and shareable, without the onerous strings attached as with Google's deal. Kahle and others have founded the Open Book Alliance, which filed an opposition to the Google Book Settlement in the U.S. District Court for the Southern District of New York, where the case is being decided. The Open Book Alliance likened the settlement to oil price-fixing schemes set up by railroad barons and John Rockefeller's Standard Oil in the 1870s. They allege that Google, the Authors Guild, and the AAP, through 29 months of secret negotiations, set up what amounts to a price-fixing cartel that will increase the cost of electronic books and library subscriptions, and effectively eliminate competition.

The American Booksellers Association (ABA), representing independent booksellers, remained on the fence, stating in a release,

ABA does not support or oppose the settlement — we do believe that there are important, related issues involved. ABA has long believed that the interests of our members, of writers and readers, and of our democratic society, are best served when the marketplace adheres to a standard of open access to books and other forms of intellectual content.

ABA, which just over a year ago launched its ambitious IndieBound project to highlight independent bookstores and the value of shopping locally, might be acting according to the adage, "An enemy of my enemy is my friend," since the proposed Google Bookstore that comes out of the GBS would likely hurt Amazon, the bane of bricks-and-mortar independent bookstoresthe proposed Google Bookstore that comes out of the GBS would likely hurt Amazon, the bane of bricks-and-mortar independent bookstores. Amazon sells actual paper books, and has cut into the sales of independent bookstores greatly. There were around 6,000 independent bookstores in the early 1990s, and only about 2,200 remain. Since the Google Bookstore — for now — will only be selling digital copies of books, one could speculate that the ABA member stores won't lose much business to Google, whereas Amazon, heavily invested in its Kindle electronic book platform, could.

After Judge Denny Chin, who is presiding over the case, called for public comment, opposition began flooding in from around the globe, from the governments of France and Germany, to scores of smaller and foreign publishers, authors, and artists, including folk singer Arlo Guthrie and author Julia Wright, daughter of Richard Wright, famed author of classics like Black Boy and Native Son. Annie Guthrie, Arlo's daughter and the granddaughter of folk music legend Woody Guthrie, in her filing, criticized Google's lucrative advertising program, which uses key words to target ads, writing, "Google could display ads for the army next to my father's antiwar songs."

Marybeth Peters, head of the U.S. Copyright Office, called it an "end run around legislative process and prerogatives." Judge Chin proposed a "fairness hearing" for October 7, 2009, to decide on the Google Book Settlement. As Prof. Samuelson has noted, out of the $125 million Google agreed to pay, the lawyers for the Authors Guild and the AAP would get $45.5 million, immediately, more than the amount in the settlement allocated to the authors.

On September 18, the settlement got walloped with a filing in opposition to it from the U.S. Department of Justice. It read, in part,

[T]he breadth of the Proposed Settlement — especially the forward-looking business arrangements it seeks to create — raises significant legal concerns. As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome — the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status — is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement.

Judge Chin announced a week later that he had granted a delay on the hearing, at the request of the Authors Guild and the AAP. The Open Book Alliance along with many others applauded the delay, and are calling for an open, transparent process going forward to deal with the future of book digitization and the issue of orphan works, in a way that best benefits the public interest.

My father and his peers on the Bay Shore Public Library Board didn't have to deal with the complex technical and legal aspects posed by the Google Book Settlement. But my mother and father raised us in a home surrounded by books and reading. When we drove in to New York City, stopping by bookstores was a favorite past-time. When my parents sold their house, the one thing my mother said she regretted more than any other was having to give up any of their books. We learned that open, vigorous, and informed debate, around the dinner table, at work, in conversation, is vital to a democratic society. The digital age is still in its infancy, with the challenges and opportunities of the Internet unfolding on a daily basis. We need to not only preserve, but to expand, access to information. I know that if my father were here today, he would struggle up to that library podium and demand no less.

÷ ÷ ÷

Amy Goodman has been confronting the Washington establishment and its corporate sponsors while giving voice to the ordinary citizens and activists who are fighting for a better, more peaceful world. Her daily international radio and TV show, Democracy Now!, began in 1996 and is now carried on more than 500 stations and on www.democracynow.org.


Books mentioned in this post



Amy Goodman is the author of Breaking the Sound Barrier

7 Responses to "Google’s “Orphan Works”"

  1.  
    Rachel October 5th, 2009 at 10:43 am

    Thanks for this. Here's another angle to the opposition: the ACLU, EFF and the public policy clinic at UC Berkeley Law are representing a coalition of authors who oppose the GBS on privacy grounds. The coalition is concerned that the collection and potential disclosure of personally identifying information about users who browse, read and make purchases online at Google Book Search will chill their readership. http://www.aclu.org/freespeech/gen/40935prs20090908.html

  2.  
    Portland Student October 5th, 2009 at 4:50 pm

    I honestly think this whole debate has defaulted to scare tactics. No one is going to destroy the books, so if you want to still use a library how it has been used for hundreds of years, no one will stop you. But the power of having the entire wealth of literary knowledge in a digital format far outweighs any of the arguments against GBS i've seen so far. As a student, i would love to be able to search through millions of pages with the click of a button, and to be able to read books without hassling with getting to the library or bookstore. We shouldn't penalize google for being in a unique position to do this, and I applaud their efforts.

  3.  
    Iliad October 8th, 2009 at 12:19 pm

    The settlement should be approved, Google should build out the digital library and the Registry, and then the government should nationalize the whole kit and kaboodle.

  4.  
    Susan Leigh Star October 8th, 2009 at 3:38 pm

    I'm a professor at an information school. I'm also a sociologist by training. There are many complex issues here informed by both of these kinds of training. The idea of making books available in the way that public libraries have in the past is commendable, on the face of it. The control of the means of production, the tie-in to a limited number of machines (has there been thought given, by the way, to maintainance, compatibility, and updates of software? Will Google do that, forever? I don't think so.)is less obviously pious. Books become orphaned for a number of reasons, including the ongoing collapse and consolidation of the publishing industry. I have written many books that are now orphans -- because the press was bought up by a conglomerate, and certain series were discontinued. I have rarely seen a red cent for any of my writing (mostly academic), with the outstanding exception of MIT Press and Cornell University Press, who continue to honor their contracts. (The other outstnading exception is the Copyright Center in Denmark, which has paid me even for gray literature circulated at a university's expense.) Other contracts contain blurry clauses, such as "you will get x percent of the profit after expenses have been met." Never have I received an accounting of "expenses" from publishers, and mostly the matter dies there. For all I know, expenses could include expensive lunches with publishers and distributors where my books are never mentioned. I have needed the publications first for tenure, then for promotion. That has been the unspoken contract between publishers and academics. But that contract is no longer morally feasible. Most publishers take all the profits for themselves (especially for digitally downloaded articles), because in order to publish at all, one has had to sign over rights to the top journals. In some scientific fields, one has to pay thousands of dollars just for publication of graphical material. I could go on. But the need for change is urgent, if we are to preserve scholarly publishing and many other forms of writing that have been useful in shaping literacy in the deepest sense in this country and others. The larger context concerns unpaid labor, changing conditions between publishers and scholars, the public good, the fate of the public library, and control of distribution. I agree heartily with Pam Samuelson and thank Amy Goodman and Powell's for presenting the clearest article I have read to date on the subject. Susan Leigh Star, Doreen Boyce Chair in Library and Information Science, University of Pittsburgh.

  5.  
    June Hymas October 9th, 2009 at 10:50 am

    At first blush, I liked this idea. I am a librarian, and my strongest self-identification has been as a lifelong reader. I wanted access to everything! I personally own over 6,000 books and have long ago run out of storage room. As I librarian, I was forced to "discard" many still valuable and usable books because of lack of shelf space. I have become more and more certain that Google, home of so many good ideas, is over-reaching on this one. It gives them too much control and a virtual monopoly. This was an excellent and easy to understand treatment of the whole issue. There really doesn't need to be so much rush to pin this down right this minute! More care and study should be taken. Thanks to Amy Goodman for this article!

  6.  
    Janet Cannon October 10th, 2009 at 8:38 pm

    I'd like to reply to Portland Student, and to the many people who think that Google is doing this for the public good. Why do we assume they are the only outfit capable of digitalising books? Free market principles, if such things have any existence at all any more, require competition, and here it's clear that competition will be healthy. Their "unique position" is just that they've got more financial means than their competitors. All the more reason to refuse to hand them an official monopoly!

    Personally I am concerned enough about the privacy factor, too, that I prefer to use Scroogle (and to donate a bit to support it).

  7.  
    Tilda October 12th, 2009 at 4:47 am

    Wikipedia hasn't killed libraries and neither will Google digitizing books. Every city doesn't have a Portland Central Library - how about some consideration for the individuals, including children, who are in parts of the country and the world who do not have a major library?

    I've actually spent the last several hours seeking a book that is just 15 years old and filled with incredible information uneasy to replicate, yet it's not available at Powells or any library that I can find (the few bookseller web sites that have it are charging over $100 for it). Is it helping the author who apparently has abandoned it to keep it from being digitized as a reference? It it helping that author that booksellers are selling it used for over a $100? (The author will never see a cut of those sales!)

    Instead of rallying against getting information out to the masses we should be harolding the prospects that anyone - even a corporation - is willing to engage in such efforts. The bookseller community could do it, but its not in their best interests; nor is it for publishers.

    Just like Wikipedia, libraries, booksellers and other ways to organize and disseminate information, this effort by Google will be seen by individuals as a good thing - another way to expand their knowledge and access to it. Hopefully, booksellers and publishers will come around, but I seriously doubt they'll be able to stop such inevitabilities.

    (PS If booksellers really wanted to help & support authors and protect their works, perhaps they'd set aside some of their used book sales and share the wealth with those who have created the products they sell?)

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