The Chronicle of Higher Education today has an online article in its Publishing section that provides a very nice summary of the opposition and the support for the Google Books Project as we near the latest deadline for Judge Denny Chin to decide whether he will authorize the agreement. The column also appears in print as Hot Type in the Chronicle Jennifer Howard writes in "Choosing up Sides to Hate or Love the Google Books Deal,"
(snip) In Japan, the author and freelance writer Shojiro Akashi made the September 4 edition of The Japan Times because of his concerns about what the deal, if approved, would mean for non-American copyright holders. That put him in the company of a multitude of other writers, including the American literary powerhouses Jonathan Lethem and Michael Chabon, who have now publicly told the court that this deal is not to their benefit.The sidebar list of related articles and a comment at the website alerts the reader that there was much wider-spread opposition to the Google Books Project in academia than the column suggests. Scholars have been disappointed in the displays of older books and how they have been scanned into the Google Books Project, for instance. And in earlier OOTJ posts here and here, I have reported on the program at Boston Public Library at which John Palfrey of the Harvard Law Library and Ann Wolpert of the MIT libraries and MIT Press both expressed great misgivings about the Google Books Project. While there are good things -- bringing a great number of books to a great number of people who otherwise would never have access; screen-reading programs for visually impaired users -- there are deeply concerning problems with the Project as it now is structured. It will be very interesting to see what Judge Chin decides to do and how it affects the future!
Mr. Lethem and Mr. Chabon joined a coalition led by the Electronic Frontier Foundation, which filed an objection on September 8. Mr. Lethem pointed to one of the biggest concerns voiced lately: privacy. "Now is the moment to make sure that Google Book Search is as private as the world of physical books," Mr. Lethem said in an EFF statement. "If future readers know that they are leaving a digital trail for others to follow, they may shy away from important intellectual journeys."
Opponents who complain about the alleged anticompetitive nature of the settlement made their objections known to the court as well. The Open Book Alliance, a coalition that includes Google's rivals Amazon.com, the Internet Archive, Microsoft, and Yahoo, as well as several writers' groups, accused the parties to the Google Books deal of "guile"—not a word I expected to see in a formal response to a copyright-infringement lawsuit. "Google and the plaintiff publishers secretly negotiated for 29 months to produce a horizontal price-fixing combination, effected and reinforced by a digital book-distribution monopoly," the alliance said in its objection. "Their guile has cleared much of the field in digital book distribution, shielding Google from meaningful competition."
So, other than Google and the other parties who shook hands on the deal, does anybody still actually like this thing?
Yes. An array of groups and institutions have filed amicus curiae briefs and issued statements in support of the Google Books settlement. In academe, supporters include Cornell University Library, the University of Virginia, the University of Wisconsin at Madison, and the Association of Independent California Colleges and Universities (speaking for similar associations in Arkansas, Florida, Iowa, and South Carolina). Thirty-two professors of antitrust law and economics have filed a motion in support. Social-justice and disability-rights advocates have endorsed the deal. Library groups have called for strict oversight of the settlement, if it's approved, but appreciate the possibilities created by putting so much material within easy reach.
(snip) One wild card is the Justice Department, which is supposed to report by September 18 on whether the proposed settlement creates an antitrust problem; the department's report will presumably carry a lot of weight with the judge.
And—this is what intrigues me the most—how will Judge Chin decide what role the federal courts can and should play in the creation and oversight of what almost everyone agrees will be a digital library the likes of which we have never seen before? Will he agree with Marybeth Peters, the U.S. Register of Copyrights, who told a late-to-the-game House Judiciary Committee hearing on Thursday that the settlement "inappropriately creates something similar to a compulsory license for works, unfairly alters the property interests of millions of rights holders of out-of-print works without any Congressional oversight, and has the capacity to create diplomatic stress for the United States" because of other countries' objections? (I wonder what the judge will make of the suggestion that Congress has a role to play here.)
Judge Chin's decision could have a land-clearing, policy-setting effect on how we decide who controls access to information. The intellectual-property scene could be reshaped the way the telecommunications world was rocked in the early 1980s, when a federal judge decided that AT&T had a monopoly that must be broken. If the settlement dies, will its demise create a wave of Baby Bell-like book-digitizing projects?
Judge Chin could choose to decide the case on the basic questions of whether the deal violates antitrust law and whether it hobbles rights holders. But it will be a lot more interesting if he weighs in on the transformative possibilities and risks of what Google wants to do and is already doing. If he's very brave, perhaps he will even try to answer this question: If not Google's Book Search, what?