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.

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.

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.

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.