Save the Google Book Search deal.

The law, lawyers, and the court.
Sept. 29 2009 12:51 PM

Save the Google Book Search Deal!

It's the best way to make out-of-print books widely accessible.

(Continued from Page 1)

What does the settlement mean for readers? For the average person, it probably won't mean that much. Books in strong demand, whether old (Dracula)or contemporary (Never Let Me Go), are in print and available no matter what happens. That's the market at work, providing supply when there is demand. With developments like Amazon's Kindle, popular books can also be increasingly found in digital form.

The Google Book Search settlement makes it easier to get books few people want, like the Windows 95 Quick Reference Guide,whose current Amazon sales rank is 7,811,396, or The Wired Nation,which in 1972 predicted a utopian age centered on cable television. These are titles of enormous value for research and that appeal to a certain type of obsessive. Yet they are also unlikely to be worth much money.

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And this, I hope, makes clear my point. A delivery system for books that few people want is not a business one builds for financial reasons. Over history, such projects are usually built not by the market but by mad emperors. No bean counter would have approved the Library of Alexandria or the Taj Mahal.

All that said, a careful look at the settlement agreement shows that it isn't perfect and needs to be better to serve the public. The Justice Department, echoing law professors Randy Picker and James Grimmelmann, have noticed that the deal may make it just a little too easy for publishers to fix prices even on their in-print e-books. That's at least one thing that needs to change. At the same time, the DoJ needs to appreciate the inherent fragility of the project and be careful not to open it up to so many parties that the whole thing explodes.

I say let a modified settlement go forward, but let the court keep watch to make sure the deal achieves its public goals without undue private gain. This is the essence of the utility model: Let a private party do something in the public's interest that would not happen otherwise while keeping an eye on what happens.

Here, the court would provide protection against a Google turn to the dark side. A lot of people have the instinct that Google is a dangerous company with designs to monopolize everything, not just old books. And the public seems, reasonably enough, in a mood to teach all big companies some hard lessons. I actually agree, and I also agree there is such a thing as what Justice Louis Brandeis called "the curse of bigness."

But if you want to put Google in its place, the book project is the wrong way to do so. It is Google's monopoly on Internet search that is valuable and potentially dangerous, not a quixotic project to provide access to unpopular books. So hold on to that sense of wariness, but understand that in this case, it's misplaced. To punish Google by killing Book Search would be like punishing Andrew Carnegie by blowing up Carnegie Hall.

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