The New York Times Opinion pages of March 23, 2011 carried an essay from Robert Darnton, the Harvard Librarian, "A Digital Library Better Than Google's." In response to Judge Denny Chin's rejection of the Google Book Settlement, Darnton revisits the dream of Google Books - a vast digital library, which makes available freely to anyone with a computer and internet connection, the literature of the world.
Darnton gives a nice precis of the action up til now: The Authors' Guild, representing a mere 8,000 members, proposed to sue Google for infringement of copyright. Google, which could have defended its actions as fair use, elected instead to negotiate a settlement agreement. This was what eventually went before Judge Chin, in a much-amended version, which...
divided up the pie. Google would sell access to its digitized database, and it would share the profits with the plaintiffs, who would now become its partners. The company would take 37 percent; the authors would get 63 percent. That solution amounted to changing copyright by means of a private lawsuit, and it gave Google legal protection that would be denied to its competitors. This was what Judge Chin found most objectionable.Other objections were that other authors (and illustrators as well), who were not represented by the Author's Guild, did not like the agreement's terms, and wished to negotiate their own terms. But the Agreement covered everybody, unless they specifically contacted Google to opt out. Instead of correcting past problems, the Agreement set into stone the development of digital books in the future, according to many critics. For example,
the question of orphan books — that is, copyrighted books whose rightsholders have not been identified. The settlement gives Google the exclusive right to digitize and sell access to those books without being subject to suits for infringement of copyright. According to Judge Chin, that provision would give Google “a de facto monopoly over unclaimed works,” raising serious antitrust concerns.Judge Chin invited the parties to rewrite the Settlement Agreement. Darnton, at Harvard, is part of a group that is thinking of ways to create a noncommercial alternative to the Google commercial model that is currently proposed. How to fund such a thing is a puzzle, but Darnton suggests, for example, a coalition of foundations working with a coalition of research libraries. He hopes that Congress would pass a bill exempting orphan works from copyrights for noncommercial purposes in a truly public library.
As examples of public digitization efforts that have succeeded, Darnton offers the Knowledge Commons and the Internet Archive which between them have digitized several million books. He also cites efforts in several countries to digitize completely the national library. This includes France, the Netherlands, Australia, Finland and Norway. He hopes that Google itself might donate its digitized trove to such an effort. It cannot hurt to ask, and the idea is an exciting one. While the current management at Google is good-hearted and public-spirited, there is certainly no guarantee that this will always be the case.