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.

Google logo.

There is a movement afoot to kill the Google Book Search deal. That's the settlement between Google, American publishers, and the Authors Guild to relaunch Google's book search, which would allow for new digital access to out-of-print books, free of legal problems. Microsoft warns that Google and America's publishers are "misusing the judicial system" to create a "monopoly in digital books." It is joined by Yahoo, Amazon, and a gaggle of professors and state attorneys general, all of whom are invoking fear of monopoly in general and Google in particular. As we speak, the deal is being renegotiated, and the whole project is in jeopardy.

The critics' premise is that the monopoly that the settlement creates is invaluable—and that without the settlement, we can create a competitive market for putting out-of-print books online. But I fear that's a fantasy that misrepresents the options. We are talking about a venture to provide online access to books that, by definition, are unpopular. It's great for a researcher like me, but as a commercial venture it is almost certainly a perpetual money-loser. Everyone (even Google itself) seems to have forgotten that there is a reason that libraries aren't generally run for profit.

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Some people think it should be the government, not Google, that creates online libraries: Don't hold your breath. Instead, the best analogy for the out-of-print version of Google Book Search may be a public utility. Think of it like a sewer system. Companies rarely build sewers without prodding or—dare I say it—a monopoly of some kind. The Anglo-American tradition, in fact, is to put a private company in charge of such public callings, especially those that require large investments. And in the big picture, that is what's really going on here: the creation of an unusual kind of public utility to provide better access to old and unpopular books.

That project is in trouble. The Justice Department has entered into negotiations, becoming effectively a fourth party to the lawsuit, and last week the judge granted an indefinite delay. The agreement can be improved, but it is important for the DoJ to stay aware that if the settlement dies, it will be researchers, not Google, who will be hurt. It's unlikely that anyone else will take on a money-losing project to scan millions of low-value volumes. If the Justice Department pushes too hard now, one day we'll be asking, "Who lost Book Search?"

Google began its wildly ambitious, expensive, and arguably foolhardy project to scan the contents of the world's greatest libraries in 2004. It was the height of the company's manic phase and around the same time that an entry in the Google company blog made the obvious point that "a lot of very useful information is not online."

The American Association of Publishers and the Authors Guild called Google's project "massive copyright infringement." They sued, years passed, and the economy collapsed. Google itself began to lose its wild energy and shed some interest in crazy projects. It went to China; its employees began going to Facebook and Twitter; and there have even been small cuts to Google's free-food program. Finally, last October, the three parties agreed to settle the lawsuit and work together instead of against one another.

The deal they previously struck is a complex scheme. A familiar search bar will give access to 20 percent of every out-of-print book, and there will be new ways to download PDFs of full books. Consumers will pay for these downloads, and most of that revenue will go to publishers and authors. The settlement excludes from its terms books that remain in print and includes a way for authors or other copyright owners to remove their books if they don't like what is going on.

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