In a late-November issue of the New York Review of Books, Robert Darnton unburdened himself of “three jeremiads,” the third of which dealt specifically with what he considers troubling aspects of the Google Books settlement. As I understand his primary concerns — and if I’ve misunderstood or misrepresented them, I hope someone will set me straight — they are these:
- Google’s purpose is not to provide access to books, but to make money for its shareholders.
- Libraries, by contrast, “exist to get books to readers . . . (which they do) for free.”
- This “incompatibility of purpose might be less troublesome if Google could offer libraries access to its digitized database of books on reasonable terms” – but, he implies, the terms embodied in the proposed settlement between Google and copyright holders are not reasonable.
Although Dr. Darnton is not very explicit about what he feels is unreasonable in the settlement’s terms, he does express serious concern about the following aspects of the proposed arrangement:
- Libraries “are not partners to the agreement, but many have provided, free of charge, the books that Google has digitized.”
- Libraries “are being asked to buy back access to those books along with those of their sister libraries.”
- The price of access “could escalate as disastrously as the price of journals” has done in recent decades (this is the subject of one of his other two jeremiads).
Dr. Darnton then poses two questions:
- “Do we want to settle copyright questions by private litigation?”
- “Do we want to commercialize access to knowledge?”
That second question is an important one with enormous implications, and deserves a separate response all its own. More on that later. The first one strikes me as too vague to be useful — if by “copyright questions” he means copyright challenges, then yes, private litigation is exactly the way they should be settled, since copyrights are almost always held privately (by authors or their assigns). If by “copyright questions” he means issues larger than those posed by specific cases, then the only correct answer would be “it depends on what the question is.”
I’d like to focus briefly on just a few of Dr. Darnton’s first six points — the two sets of three points above.
First of all, the idea that libraries provide free services is both pernicious and inaccurate, and the perpetuation of that idea is ultimately harmful to libraries (not least because, when expressed publicly, it’s very often in the context of arguments for continued or additional funding). The reality is not that library services are free, but rather that the charges are hidden — in property or sales taxes, in student fees, in tuition — and the assessments are distributed broadly, such that library services feel free, more or less, to those who use them. There’s absolutely nothing wrong with funding libraries in this indirect way, of course, but there is something very wrong with treating the illusion of “freeness” as if it had a basis in reality.
More troubling is Dr. Darnton’s (in my view) deeply misleading characterization of both what participating libraries gave to Google in the course of the digitization project, and what will be sold by Google to those libraries and others who subscribe to the service proposed in the settlement (I’ve labeled these as points numbers 4 and 5 above).
It is simply not true that participant libraries “provided . . . Google” with books “free of charge.” This is a common formulation among opponents of the settlement, and it’s deeply misleading, creating as it does a mental image of libraries handing over their books and Google taking them away. What the libraries provided was access to books in their collections; Google made copies and took the copies — not the books — away with them. Not only did Google take nothing from the libraries, it actually left them with more than the libraries had prior to the project, in that each library was left with its own digital copies of the books in its collection, copies made by Google and given to the library at no charge. The libraries lost nothing, spent nothing, and gained much. One example: at the University of Michigan, the library estimates that it costs them roughly $60 to digitize a single volume. This means that Google has given their library roughly $60M of value by digitizing (and thereby both preserving and making publicly accessible) their public-domain materials, and another $300M of value by providing digital preservation for their in-copyright books. Yes, the project yielded tremendous value for Google, but allowing Google to make money seems like a relatively small price to pay for this kind of service.
Second, libraries that participated in the project are not “being asked to buy back access to [their] books.” Since partner libraries are left with their own digital copies made from their collections, they already have access to the books they allowed Google to copy; in fact, they have been given tremendously enhanced access to those books, and at no charge. What Google does expect them to pay for, if they wish it, is hosted access to additional digital copies of a much larger collection of books, which includes titles from their collection as well as from many others.
Am I saying that the settlement is perfect? Of course not. The possibility of skyrocketing prices is certainly troubling (just as it is for every other service that libraries buy), and it seems to me that should it be approved, a settlement as far-reaching as this one is liable to have consequences both unforeseen and unintended for copyright law in other corners of the scholarly publishing world.
But I think it’s important that we be clear on the facts.
One fact is that no participating library was left after the Google project with anything less than what it had beforehand. Another is that each participant library was left with the extremely valuable results of a massive digitization project, which cost the library nothing. And another is that no library will have to pay for access to the books the library allowed Google to digitize.
Clarity on these facts is, it seems to me, essential to any responsible and useful discussion of the worthiness of both the Google project and the proposed settlement.