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A Book Grab by Google

By Brewster Kahle
Tuesday, May 19, 2009

A court in the Southern District of New York will soon make a decision that could determine our digital future.

A ruling is expected shortly on a proposed settlement of lawsuits filed against Google in 2005 by groups representing authors and publishers claiming that Google's book-scanning project violated copyright. When Google announced its project in 2004, the company said its goal was simple yet far-reaching. Like its search engine, which points people to Web sites, Google's book search product would help people find information in books and direct them to volumes in libraries and bookstores.

The project seemed in keeping with the guiding principles of the Internet, which assumes a quid pro quo between search engines and Web sites. That is, sites allow themselves to be copied and indexed as long as search engines such as Google lead people back to the original sites.

But as we learned when the settlement was proposed last October, Google's search tool has become a digital bookstore. The settlement outlines business models for creating and selling electronic editions of books, and selling subscriptions to Google's new exclusive library.

Whereas the original lawsuit could have helped define fair use in the digital age, the settlement provides a new and unsettling form of media consolidation.

If approved, the settlement would produce not one but two court-sanctioned monopolies. Google will have permission to bring under its sole control information that has been accessible through public institutions for centuries. In essence, Google will be privatizing our libraries.

It may seem puzzling that a civil lawsuit could yield monopolies. Traditionally, class-action lawsuits cluster a group of people who have suffered the same kind of harm as a result of alleged wrongful conduct. And under this settlement, authors who come forward to claim ownership in books scanned by Google would receive $60 per title.

But the settlement would also create a class that includes millions of people who will never come forward. For the majority of books -- considered "orphan" works -- no one will claim ownership. The author may have died; the publisher might have gone out of business or doesn't respond to inquiries; the original contract has disappeared.

Google would get an explicit, perpetual license to scan and sell access to these in-copyright but out-of-print orphans, which make up an estimated 50 to 70 percent of books published after 1923. No other provider of digital books would enjoy the same legal protection. The settlement also creates a Book Rights Registry that, in conjunction with Google, would set prices for all commercial terms associated with digital books.

Broad access is the greatest promise of our digital age. Giving control over such access to one company, no matter how clever or popular, is a danger to principles we hold dear: free speech, open access to knowledge and universal education. Throughout history, those principles have been realized in libraries, publishers and legal systems.

There are alternatives. Separate from the Google effort, hundreds of libraries, publishers and technology firms are already digitizing books, with the goal of creating an open, freely accessible system for people to discover, borrow, purchase and read millions of titles.

It's not that expensive. For the cost of 60 miles of highway, we can have a 10 million-book digital library available to a generation that is growing up reading on-screen. Our job is to put the best works of humankind within reach of that generation. Through a simple Web search, a student researching the life of John F. Kennedy should be able to find books from many libraries, and many booksellers -- and not be limited to one private library whose titles are available for a fee, controlled by a corporation that can dictate what we are allowed to read.

We've wrestled with high-tech monopolies in the past -- IBM, AT&T, Microsoft. The lesson was that such strongholds restrict innovation and competition. In those cases, the courts stepped in to address the inequities. Now, we have a proposal for monopolies to be created by the courts.

This settlement should not be approved. The promise of a rich and democratic digital future will be hindered by monopolies. Laws and the free market can support many innovative, open approaches to lending and selling books. We need to focus on legislation to address works that are caught in copyright limbo. And we need to stop monopolies from forming so that we can create vibrant publishing environments.

We are very close to having universal access to all knowledge. Let's not stumble now.

The writer is founder and director of the Internet Archive, a nonprofit library in San Francisco, and the Open Content Alliance.

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