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I would like to take a closer look at Judge Chin's Google ruling about the scanning of library books (Authors Guild et al. vs. Google Inc., March 22, 2011). To kill the suspense: Settlement denied - not reasonable, not adequate, not fair. [Note: I have chosen not to add explanatory notes. Please use Google to clarify unfamiliar references.]
My discussion will join this protracted legal event in what should be the final scenes of the last act. What happened before is as interesting as the play by play of last year's super bowl. What is interesting now is to examine the legal positions and the arguments as they have developed into the present: from the delivery of snippets to justify scanning (2006) into the attempt (2009) to settle and start putting library books on screens to the denial of the settlement (2011).
There are some voices heard that claim Judge Chin's ruling is a blueprint for a renegotiation of details of the settlement with the goal of eventual approval in the near term. There are other voices that maintain that Congress will have to act, a prospect that does not make me jump for joy.
I am not in a position to place a safe bet one way or the other; however, I would like to make a case for the electronic delivery of library books and to vent some outrage at the convoluted legal proceeding, starting with the evolution of copyright to its present state as guardian of low-end entertainment interests. I plan to continue on with the rules of legal proceedings which make the denial a barely plausible, strangely brief, legally safe but thoroughly unhelpful balance of a variety of interests competing with the public good. The public good, represented by 12 million digital library books, resting in its manifest obviousness, can receive only cursory consideration from the Honorable Denny Chin too busy placating sharks smelling money in the water.
One has the impression that there are really two proceedings. There is the District Court and there is the court of public opinion. The Judges of the District Court are thoroughly professional and independent and are only rarely impeached and removed. The courts are heavy with property disputes and seem to default to that perspective. The assumptions and procedures are designed to mediate between cunning and self-serving chislers exploiting badly conceived and written law and anointing the least unworthy. The Honorable Judges are important players in the game, and at any moment, without any tremendous legal or intellectual skill and effort, they can be game changers. Concerning Intellectual Property Law, the rules of the game have been set by a series of wish lists submitted for a swift rubber stamp to Congress by the entertainment industry over the last two decades. One has to wonder what factors move a decision one way or the other, given the swollen arguments, especially since all scenarios play out in the public court.
There are so many potential factors that plausible rulings could cover a wide spectrum, in this case, from acceptance of the settlement (as is) to a rejection (as is) to any number of interesting novelties in the game of copyright and old books about which one can only wonder. This actual ruling is merely a thumbs down based on factors agglomerated in the judge's chambers over a specific and limited period of time. One always hopes for due deliberation and insight, one hopes the ruling is not just manufactured under pressure, one does not dare suspect a lack of obvious clues, one dares not hope for brilliance or vision, and one hopes the ruling is not just a band-aid on a sore point of the law. Copyright is clearly a sore point, made worse by a series of congressional surgeries over the last several decades, and there is no indication that Judge Chin's ruling is much more than a "take two aspirin and call the nurse if you still feel bad in the morning."
The court of public opinion does believe in copyright. Nobody has really spent much time thinking about it, but generally, people believe in the rights of authors over their works. There is no great understanding of potential difference between a copyrighted book of history or literary criticism and a copyrighted song by Sting or a potboiler by Scott Turow. There is no great awareness of the history of protecting books from copying, nor the notion that one would want to release them into the public domain in a timely fashion. The timely move to the public domain, incidentally, is one of the many puzzling and obviously nonsensical things, to hear the lawyers talk, that the original language of the Constitution makes explicit. Contrary to the time of the founding persons, today there is no great appreciation for the agenda of scholars and libraries in gaining or delivering efficient access to research materials, e.g. library books. In the collective herd-mind, copyright functions on the level of chest beating, a loud unruly chorus in favor. The herd can also be counted on to be convinced that corporations are in it for the money - only for the money - and they are against monopolies even if there is no clear understanding what that might be in this case. Google is a fast growing success story so it must be a monopoly. All these factors are lumped into the barely legal concept of "concern."
There is a small and vocal minority, to which I count myself, that is taken by the prospect of a digital library available world wide. This group on the fringe sees no actual appropriation of property of monetary value and no legions of disenfranchised authors and publishers in penury. But the court of public opinion is not unlike the Roman Colosseum, vocal minorities do not affect a thumbs down. Let the digital library die, long live the rights of orphans!
The truth value in the court of public lies more in repetition than in analysis. Editors of the popular media see no benefit in contrarian stances. The value of intellectual property is unquestioned; the law is the law. Investigative reporters are, of course, skeptical and suspicious by nature when it suits them. If a story is too convenient, too pretty, too pat, they will, on occasion, beat the bushes to see what may be hiding in the Honeysuckle.
It would be a big coup if someone were to happen on the suspicion that all the assumptions about intellectual property were really a scam, and that Thomas Jefferson would have been hopping mad if he had suspected that his Congress would eventually mutate into a rubber stamp for the music industry and take books along into effectively unlimited copyright. Best not to live past one's time.
Copyright as amended in 1998 is really a unfortunate hack job. What if copyright has nothing really to do with books anymore? What if the District Court got a high profile case about books, with real issues about building institutions for the public good and with sound foundations in the legal history of libraries, the public domain and educational priorities, and what if the court had at its disposal only laws dealing with five minute segments of amplified sounds, or DVD's or T-shirt vendors, artifacts of entertainment with no compelling broad educational uses? What is a District Court to do? Well, twenty pages of technicalities, a couple of sob stories and a big finger pointing towards Capitol Hill will do just fine.
What if authors of books are generally quite relaxed about their rights - so relaxed, in fact, that a majority in the range of 85% would not lift a finger to renew their copyright even under penalty (or benefit) of their work going into the public domain in 28 years as per Copyright Act of 1909. What if authors of books are so relaxed to the point of indifference that they would not lift a finger in protest were nonsensical rights shoved down their unaware throats as per Copyright Act of 1992.
What sort of investigative journalism would it take to get an exclusive scoop on the deep, dark, hidden secrets of copyright and what has happened to it at the end of the 20th Century. Who would read it? Who would publish it?
It is tedious, boring, self-defeating and unprofitable to challenge the court of public opinion. The word or concept "copyright" has good recognition value; it has positive focus group numbers; it has universally positive associations. Who wants to get into the details of the difference between books and music and movies and graphics? Who wants to get into the difference between books on a library shelf, books in a book store, on Amazon, or books marketed on a CD or as a digital stream, or books delivered as a pdf? Best to schedule panel discussions at professionals conference, keep the drums beating and keep the details obscured. Bravo the Authors Association, the Guild of Potboilers.
It is an enervating, thoroughly unbelievable story of what has happened to copyright since 1976, culminating in the "Copyright Term Extension Act of 1998." (Dozens of attempts to fix 'this and that' with copyright have been tabled in all Congresses since then, a list is available on Wiki filed under "pending copyright legislation" - a lame joke by the wiki editors at best.) The literature on the subject is extensive and a bit overwhelming and comical, especially with choice topics like intergenerational justice applied to copyright. The relevant sources are of course about the law. It is about property rights. But it is also about books, or it used to be about books. In its view of the large category of books, which are generally referred to in "and-phrases" with music, the legal literature is full of errors of perception, conveniently inappropriate twisting of facts and the unreflected acceptance of platitudes about property rights that have nothing to do with the books sitting on library shelves or with the intention of authors for a wide audience or with the legitimate needs of academic researchers. It would be a big scoop were it not so completely irrelevant - until, that is, along comes Google(!) and the technical breakthrough of large scale scanning. On the scales of justice, the ironed on decal on a T-shirt weighs more than a rare out of print history of Burbank published in the 1960's and available in only 16 libraries in the continental United States.
Most startling and absurd is the role of libraries as a storage depot for out of print intellectual property. One must assume that journalism majors, now graduated and now investigating, spent more time with the present rendered in video loops than with the versions of the past ranged on library shelves - thoroughly understandable. That would explain why the New York Times writer announcing Judge Chin's ruling leads with the line: "Deal runs afoul a 300 year old principle, copyright." In this essay we shall watch incredulously as all manner commentators think it enough to wave the copyright flag and dismiss an electronic library of 12 million on-line books.
Have the journalism majors not investigated outside the reserve reading room of the undergraduate library? Most probably they have not.
That would explain why everyone bows before copyright, but only a very few question the intrinsic value of a copyright that is out of print. Of course, everything would be best if judges are clearly correct in the sense of being up to the task of being right in the larger non-legal sense, and their published opinions were universally applauded, today and in 56 years. There have been such opinions.
Unfortunately, it does not always work that way. Congress passes acts, lawyers sue and defend cases and judges issue opinions which are tentative at best. In an undertaking as massive as building an electronic library of all books in the tens of millions, a ruling of some twenty pages of actual text, for which all have waited for over a year, can be but a brief pause in the development.
I tend to go with Dickens' assessment of the law, pardon the pun. (No need to incite with the actual quote which can be Googled - Dickens, Oliver Twist, law, Mr. Bumble - btw. the quote seems to have originated in the 17c.). Of course Dickens is referring to the stubbornness of the law rather than just issuing a general invective in the law's direction. Of course he is speaking of the English law of the 19c. Yet in rallying around the concept of "concern" (in plural form), the opponents have brought some of that arbitrary stubbornness in the face of new horizons into the USDC of today. Who will pull and push the law down the road toward electronic research materials?
In following a case, one can examine the texts put out by the court of public opinion, one can examine the legal arguments, the papers and briefs filed with the case. One can examine the legal literature accompanying the litigation. Finally, a ruling and a published opinion emerges for analysis. One person has been appointed to pick and choose and then to decide; at least half the stakeholders are disappointed and incredulous. The cheering of the victors cannot deter the advocates of the electronic library from examining the road not taken. The advocates for the electronic library can be 'asses' too and balk at going down the road of locking away out of print books. If the press declines investigation, the future will wonder about the collective neural outages in newsrooms in the Spring of 2011.
Of course, journalist are not to blame except in the sense of not rising to an appropriate level of analysis in this case. The discussion is thus ceded to the lawyers for who the procedures of the law come first, the maintenance of legal principles of indistinct provenance comes second. The public good embodied in electronic library books is a distant four hundred and third on the list of competing interests. This represents, in short, my personal reading of Judge Chin's ruling, with all due respect.
Yet here is a chance to compare the perception of realities: on one hand, the reality of libraries, researchers and indexing companies - on the other hand, the perception of the law of its function to keep order in disputes about property. The discussion about library books has been dragged off into a dispute about property. In this case, one can see a defense of property rights for things that have no monetary value. One can also see a great deal of ballyhoo about potential victims that will turn out to have been figments of the imagination. One can see Congress giving protection in all directions whether it makes sense or not. One can see protection of rights morph into burdens and uncompensated social costs. And finally, there is a corporation known for innovation, for taking on the new technological challenges that are evolving in knowledge representation into logical and necessary action - I think courageously.
There will be a competing view of the role of libraries playing out in the court of opinion. There are those who would limit libraries to delivering electronic catalog entries and the storage and circulation of physical books. To be fair, this view of libraries also sets great stock in the expertise of highly trained staff to aid research. There is no argument about the latter; the staff of professional librarians will be in high demand in all scenarios.
The question arises whether the electronic catalog, magnificent as it is, represents the end of history, the end of the line for bibliographic development, culminating in a bed of laurels and a bottomless bucket of champagne; or, if work will continue along the lines of several dozen libraries around the world who have started digitizing (and indexing) their collections, page by page, with the help and support of Google, but also on their own. In addition to an entry in the OCLC catalog WorldCat, their books will be part of the great index built by Google. The spectacular difference compared to the catalog is that the index will find books based on a specific query, the index will calculate a measure of significance and will open the book to the relevant page with bookmarks to other potentially significant pages. The prospect of being able to triangulate text passages touching specific topics through query terms is truly exciting.
Strange as it may seem, there are voices arrayed against the idea of the index. The arguments are varied and cover many points. There are the arguments based on faulty execution by Google and the libraries which ignore the inevitability that the system will improve; billions of OCR errors will be fixed, millions of metadata errors will be corrected and the index will become ever better. There is a good bit of belly-aching going on among the extremely learned who fear some dislocations in ivory towers, but we should not forget that education is a project for the huddled masses. There is the "we only read whole books" crowd. Do you also read sets of volumes? Good for you. Must be hard to do research. There is also the "we only read vellum crowd." There are the anti-business forces who fantasize about technological capabilities and the will, largely undemonstrated, to make something happen with public sector resources (plentiful as they are). And there are those who just hate the private sector, business in general and specific companies most especially.
There are the arguments that this project will lead to a monopoly of information for Google. This is a sort of argument of last resort. At present just a relatively few libraries have a great collection of books; nobody thinks of the Library of Congress as a monopoly. Yet the elite researchers working at elite libraries do have a monopoly-like access to research materials, true, guilty as charged. The saving grace is that decade old library books are hardly the staff of life for society in general; library books will not fuel your car. There is no strategic reserve of library books to be tapped in times of national crisis. It would be better to think of libraries as the storage of last resort for books that have lost commercial value. The current restrictions of access to library books is not due to monopolistic practices, but to the logistics of dealing with physical objects. To interpret widening access with monopolistic practices seems strange to a non-lawyer.
To get a book from the NYPL you have to go there, walk up the steps, request the book and read it in the reading room. How many of the 10 million people in the greater metropolitan area can do that on a single day? Multiply that by the days the library is open and throw away the repeat users. The number will be small. The State of North Carolina has two libraries of medium greatness; what percentage of the population has access? What is the counterpart to the concept of monopoly that restrains access simply and innocently because of the limits of the physical logistics? It is called higher education. It is called the research library. In fact, only roughly 15,000 graduate students, many from out of state, have the benefit of the "great" part of the Duke and UNC libraries.
While libraries may have cornered the market on library books, the privileged users are not engaged in fantastically lucrative pursuits (exceptions noted) but rather are following modest academic careers. Novice academics could not be expected to pay even one dollar for every book they have to look through on the way to a PhD. Nor for that matter should independent scholars who have no institutional affiliation pay for library books.
At present, if you need a book - you have to find a library - preferable a research library within a 100 mile radius. Not the optimal state of affairs. The pooling of textual resources, the books, and the delivery of electronic copies to the screen would open access. It would merely make the existing monopoly which restrains access to a few - if that is what it is - more efficient and less of a monopoly. This already grants the anti's an unnecessary concession: it is not possible to have a monopoly of something that has no intrinsic commercial value. Further down, there will have to be a large section dealing with the "concern" or the "concerns" of Judge Chin about the role of Google which should really have been admiration for the index and an acceptance of the settlement. If oil had been sitting on shelves like library books waiting to be read in the 19th century there would have been no monopoly of oil. No money will be made with library books on a scale that would point to monopoly. Yet the social costs of restricting access, or better, the costs of not using the best available technologies to widen access, are huge.
One final word on the first installment: Let us not forget that Google's market dominance, in fact, is due to several factors to quote Grimmelmann quoting the law, "superior product, business acumen, [...] historic accident" - three criteria for legal and legitimate market dominance. Grimmelmann does not believe these criteria apply to Google. Read it yourself; I disagree.
[James Grimmelmann (New York Law School), "The Amended Google Books Settlement Is Still Exclusive," CPI Antitrust Journal, January 2010 - N.B. enter verbatim phrases of quotations into a Google window, w/ quote marks, to raise the original source quickly. Above - "superior product, business acumen" Grimmelmann - will bring up the CPI piece.]
Grimmelmann would like to have us think that the the ASA would give Google market dominance, not the actual three criteria. Grimmelmann's argument that Judge Chin would have given Google an advantage in the market of "orphan books" by the stroke of the pen makes sense only to a speed reader who does not examine the argument in detail. I hope to work towards a closer examination of this and similar arguments of shallow plausibility. The nature of copyright and the importance (lack of importance actually) of the copyright of "orphans" will be introduced in the second installment.
