Pamela Samuelson has written a great piece on the Google Books litigation. As anybody who watches inside baseball knows, Google embarked on a program to digitize in-copyright and orphan works. They were of course sued. Out of the lawsuit came a proposed settlement, which, as everybody but the lawyers who negotiated it expected, was not approved by the judge. Thus, we are back to the smoke-filled rooms of settlement discussion. What Samuelson does is outline how some of the outcomes of the now aborted settlement could be made real through legislation.
Reading the Samuelson document makes you realize how far beyond the current law the settlement reached. It’s good that the court knocked down the proposal. Legislation is creaky and always full of compromises, but it’s the only democracy we have.
I am not going to revisit the legal issues here, about which I am absolutely inexpert. What has caught my attention is how irrelevant the settlement has become. The world has changed because of Google’s transgressions, and whether the settlement were approved or not, you can’t roll back the tape and see the world as it was before Google set up an assembly line of digital cameras and got to work. We live in the post-Google era now, where large-scale digitization projects are taken for granted and where the publishing industry has been restructured around the anticipation of a service that the absence of an approved settlement has left in limbo.
For example, settlement or no, we have the HathiTrust, which grew directly out of Google’s scanning project. Focusing at this time on public domain works and with true zeal for detecting which orphan works are indeed in the public domain, the HathiTrust has now grown to a diverse collaboration of many research libraries, which share and scan books. The digital collection that the HathiTrust is putting together has no peer. It is, in my view, one of the most interesting, ambitious, and commendable projects going on today in the media world. Settlement or no, we would not have it without Google.
Or we could point to some of the international digitization projects. To an American ear, some of the protests by the French of the loss of French “patrimony” were Google to digitize every French book is a bit amusing, but amusing or dead serious, Google has inspired the French and other European countries to dust off the books and bring in the scanners. It is ironic to consider that all those books, once digitized, will be indexed by Google among other search engines, but the French now have a digital patrimony, and they have Google’s impetus to thank for it.
Without Google’s mass digitization project, it is hard to imagine why three parallel acquisitions would all have taken place within a relatively short span of time: the acquisition of Questia by Gale/Cengage, of Ebrary by ProQuest, and of NetLibrary by EBSCO. Without Google would we have seen the new aggregations of university press books forthcoming from the university presses of Oxford and Cambridge, Project Muse, UPEC (the university press ebook consortium, which has now merged with Muse), and JSTOR (a client)? Without Google’s mass digitization project, it is difficult to see the support by the major trade houses for Google Ebooks, potentially a true rival to Amazon’s Kindle program–though it should be said that the precise link, if any, between the litigation and Google Ebooks remains obscure.
It was the Google project that prompted Robert Darnton to embark on a quest for support to build a national digital library. Such a library would get it “right”–would satisfy the needs of the society without submitting to the potentially autocratic control of a commercial entitry. I have my doubts that Darnton’s project will ever get funded, at least not at the scale he envisions, but it doesn’t have to be wholly successful to spur others to look at their digital collections and say, Why can’t we get all this online? Google may have overreached with its project, but its imitators are attempting to reach just as far.
I wonder as well — and here the cause and effect are harder to yoke together — if the growing interest in data-mining and the examination of large-scale corpora is itself yet another example of Google having put ideas into people’s minds. The prospect of all the world’s books, in every language, in a seamless database — to be interrogated in every which way, to spawn countless doctoral dissertations, to usher in a new age of automated research! It’s a marvelous vision, worthy of Borges on a sunny day. I think it is Google’s example that we should thank for this. Google thinks big and makes us all thing bigger just by beholding its grandeur.
This is not a defense of Google. I thought the original mass digitization project was a terrible infringement on the rights of authors and publishers and that the proposed settlement short-circuited the legislative process in alarming ways. But all that is irrelevant. Even if Google were to pack up and go home, even if the negotiating team would simply stop, acknowledging defeat, this is now the world that Google built, settlement or no settlement. A conspiracy theorist might wonder if that was Google’s aim all along: explode a big digital bomb and intimidate the rest of the world into an arm’s race of scanning, the better to be indexed by Google Web Search. I doubt it, but true or false, the outcome is the same: we are all Googlers now.
You cannot put the Google back into the bottle. If this cyberspirit proves to be malevolent, we will have to turn to a rival entity of comparable scope and ambition. That would be who exactly? The wizard of Apple? The djinn of Facebook?