Google Book Settlement: On Taking the Public Good Into Consideration By Congressional Intervention

If the public good matters at all in the Google Book Settlement litigation, Robert Darnton, Carl H. Pforzheimer University Professor at Harvard suggests two solutions in his New York Review of Books think piece, Google and the New Digital Future. The first proposal is to convert Google Books into a public utility -- to nationalize Google Books as a public digital library by an act of Congress that acquires Google's digital assets and resolves copyright and orphans works issues. Darnton writes "but it is not clear how Google would react to such a buyout."

Anyone think that is going to happen? Congress is not going to buy the assets of Google Books. Nor should it. Why penalize Google for being a good capitalist, one that brought a new product to market with the help of university libraries, and to date has beaten its competitors to the point of monopolizing that market. Break the trusts, don't nationalize them is the objective of antitrust law in a market economy. If Congress wants to create a national digital library for the public good, one that offers an alternative to the private sector, namely Google Books right now (but who know what the future may bring), it certainly can establish one along the lines of the BookServer model.

Darnton's second proposal calls for congressional intervention in the form of legislation to protect the digitization of orphan works. It's clearly a more practical solution, one that has been kicking around in the Google Books debate for awhile now. He writes

Congress would have to intervene with legislation to protect the digitization of orphan works from lawsuits, but it would not need to appropriate funds. Instead, funding could come from a coalition of foundations. The digitizing, open-access distribution, and preservation of orphan works could be done by a nonprofit organization such as the Internet Archive, a nonprofit group that was built as a digital library of texts, images, and archived Web pages. In order to avoid conflict with interests in the current commercial market, the database would include only books in the public domain and orphan works. Its time span would increase as copyrights expired, and it could include an opt-in provision for rightsholders of books that are in copyright but out of print.

The work need not be done in haste. At the rate of a million books a year, we would have a great library, free and accessible to everyone, within a decade. And the job would be done right, with none of the missing pages, botched images, faulty editions, omitted artwork, censoring, and misconceived cataloging that mar Google's enterprise. Bibliographers—who appear to play little or no part in Google's enterprise—would direct operations along with computer engineers. Librarians would cooperate with both in order to assure the preservation of the books, another weak point in GBS, because Google is not committed to maintaining its corpus, and digitized texts easily degrade or become inaccessible.

Getting the job done right by nonprofits as outlined by Darnton without any federal funding seems like a daunting task. I wonder why the concern with avoiding conflict with the current commercial market by limiting access to books in the public domain, orphan works and out-of-print copyright-protected works. Congressional legislation could mandate funding for a utility based on an open architecture for books in the public domain, orphan works and out-of-print copyright-protected works that also includes an opt-in provision for books that are in-print without conflicting with competition in the marketplace. In the BookServer model, publishers are simply given another option to market their products. They set their own pricing and manage the distribution of their books while BookServer provides universal access to book data made available in open formats. BookServer facilitates pay transactions in addition to borrowing books from libraries, and downloading free, publicly accessible books. Federal financial support for an open architecture for free downloading, lending and selling digital books over the Internet as proposed by The Internet Archive's BookServer would serve the public good. [JH]