Google Books sued over "orphan books"

Click on the title to this post to read an article from the Chronicle of Higher Education online about orphan books -- the out-of-print works still under copyright, but for which the copyright holder cannot be found. Abandoned works, that is, by both "parents," the publisher and the author, alike, poor dears. The short post by Steve Kolowich actually links out to several other reports, including a longer article from the New York Times, from April 3, 2008, "Google's Plan for Out of Print Books is Challenged." Written by Miguel Helft, the article reviews the Google Books scanning plan, and the suit by authors and publishers that led to a settlement, and then notes:

But a growing chorus is complaining that a far-reaching settlement of a suit brought against Google by publishers and authors is about to grant the company too much power over orphan works.

These critics say the settlement, which is subject to court approval, will give Google virtually exclusive rights to publish the books online and to profit from them. Some academics and public interest groups plan to file legal briefs objecting to this and other parts of the settlement in coming weeks, before a review by a federal judge in June.

While most orphan books are obscure, in aggregate they are a valuable, broad swath of 20th-century literature and scholarship.

Determining which books are orphans is difficult, but specialists say orphan works could make up the bulk of the collections of some major libraries.

Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database.

The settlement, “takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,” said Robert Darnton, head of the Harvard University library system. “Google will be a monopoly.”

Google, which has scanned more than seven million books from the collections of major libraries at its own expense, vigorously defends the settlement, saying it will bring great benefits to the broader public. And it says others could make similar deals.

“This agreement expands access to many of these hard-to-find books in a way that is great for Google, great for authors, great for publishers and great for readers,” said Alexander Macgillivray, the Google lawyer who led the settlement negotiations with the Association of American Publishers and the Authors Guild.

Most of the critics, which include copyright specialists, antitrust scholars and some librarians, agree that the public will benefit. But they say others should also have rights to orphan works. And they oppose what they say amounts to the rewriting, through a private deal rather than through legislation, of the copyright rules for millions of texts.

“They are doing an end run around the legislative process,” said Brewster Kahle, founder of the Open Content Alliance, which is working to build a digital library with few restrictions.

Opposition to the 134-page agreement, which the parties announced in October, has been building slowly as its implications have become clearer. Groups that plan to raise concerns with the court include the American Library Association, the Institute for Information Law and Policy at New York Law School and a group of lawyers led by Prof. Charles R. Nesson of Harvard Law School. It is not clear that any group will oppose the settlement outright. (snip)

Authors are permitted to opt out of the settlement or remove individual books from Google’s database. Google says it expects the pool of orphan books to shrink as authors learn about the registry and claim their books.

While the registry’s agreement with Google is not exclusive, the registry will be allowed to license to others only the books whose authors and publishers have explicitly authorized it. Since no such authorization is possible for orphan works, only Google would have access to them, so only Google could assemble a truly comprehensive book database.

“No other company can realistically get an equivalent license,” said Pamela Samuelson, a professor at the University of California, Berkeley, and co-director of the Berkeley Center for Law and Technology. (snip)

Some of Google’s rivals are clearly interested in the settlement’s fate. Microsoft is helping to finance the research on the settlement at the New York Law School institute. James Grimmelmann, an associate professor at the institute, said its work was not influenced by Microsoft. Microsoft confirmed this but declined to comment further.

Amazon also declined to comment. An unmatchable back catalog could eventually make Google a primary source for digital versions of books, old and new, threatening other e-book stores.

This penultimate paragraph refers to a efforts by New York Law School's Institute for Information Law and Policy, which has asked leave of the court to file an amicus curiae brief with the court as it finishes considering the Google Books settlement. Comments close on May 5, and a hearing is scheduled on June 11, 2009. The most interesting part, as noted in the Times article above, is that the Institute is at least partly underwritten by Microsoft on this project. See this blog entry at blog.Wired.com, "Who's Messing With the Google Book Settlement? Hint: They're in Redmond, Washington. The post is dated March 31, written by Stephen Levy and concludes:

The chief investigator of the New York Law School project is James Grimmelmann. In an earlier career phase, associate law professor Grimmelmann worked as a programmer for Microsoft. At a conference in February, Grimmelmann was discussing his views of the book settlement with a policy specialist of his former employer, and the Microsoft exec reminded Grimmelmann that the company has had a continuing interest in funding academic efforts.
On March 11, Grimmelmann laid out the project in a proposal sent to Microsoft. The amicus brief is one four initiatives the Law School will undertake. The others are a series of white papers, a symposium on the settlement issues, and a website that will act as a hub of activity for those challenging or asking for changes on the settlement. Grimmelmann proposed that Microsoft's contribution to fund these efforts should be $50,000, and he now confirms Microsoft pledged that amount. Though Grimmelmann says other contributors may emerge, currently Microsoft is the sole outside funder of New York Law School's Google Book Settlement Project.
Microsoft says that its behavior should be viewed in the context of similar academic grants over the years. "We are funding this like we fund dozens of law projects," says Tom Rubin, Microsoft's chief counsel for intellectual property strategy. "The issues that are implicated in the settlement are important ones. New York Law School has taken an important position on orphan works and they deserve to be heard."
Rubin says that as with other instances of Microsoft funding of academic projects, the recipients maintain their independence and are free to reach any conclusions. He won't comment on whether Microsoft itself plans to file an objection to the settlement.
It may be a good investment on Microsoft's part, but doesn't the Microsoft money taint New York Law School's efforts? "I'm sure there's a danger in being perceived as compromised," says Grimmelmann. "But I know it's not affecting our work. Microsoft is willing to send us money to do good work with our students and we're happy to take it." (Grimmelmann's own stance on the Google Settlement, first expressed in a blog posting last November, is rather nuanced. He thinks it's a positive development, but wants significant change — generally, ones that restrain Google. He also says that at various times, his positions on issues have been anti-Microsoft as well as anti-Google.)
My conversation with Grimmelmann came just after his session at the East Coast Foo Camp last weekend, a conference run by O’Reilly Media. The name of the session was "Hacking the Google Book Settlement."
Turns out that cleverest hacker here is Microsoft, making an academic grant that may help put some judicial heat on its rival.

Gay Marriage Vote in D.C. to go before Congress

The Boston Globe prints an Associated Press report that the Washington, D.C. city council voted unanimously to recognize gay marriages from states that have legalized them. This vote must then go before the Congress within 30 days for ratification. That opens the way for the new Congress seated after the fall, 2008 elections to reconsider the Defense of Marriage Act which President Bill Clinton signed into law in 1996.

A preliminary vote by the District of Columbia's city council to recognize same-sex marriages performed elsewhere puts the issue on a path to Congress, which has final say over D.C.'s laws. That could force lawmakers to take up the politically dicey debate after years of letting it play out in the states.

"Let's be clear, this is a new era," gay D.C. council member David Catania said yesterday, expressing optimism that the city's law would clear Congress after a final council vote in May.

The council's unanimous vote Tuesday came the same day Vermont became the fourth state to legalize gay marriage and the first to do so with a legislature's vote. (snip)

Advocates see Washington holding symbolic importance in the debate, but some emphasized that there isn't a dominant battleground in the quest for marriage equality.

"The district is equivalent to a small state, and the only difference is Congress's ability to interfere with local decisions," said David Smith, vice president of the Washington-based Human Rights Campaign.

"We would treat it as any other state and move to defend the decision of the Legislature or the courts."

(Read federal DOMA at GPO Access here:
1 USC section 7
28 USC section 1738C
This is an interactive database, so I can't link directly to the cites for you. You must run the search yourself. Look at the instructions and examples to see how to enter the citations I have given you above, and type them into the search box, to retrieve the full text of the statute.

Testing the Limits of the Fair Use Doctrine

Professor Charles Nesson of Harvard Law School is defending a Boston University graduate student, Joel Tenenbaum, accused of downloading music illegally by the Recording Industry Association of America. Nesson is well known for his passion for technology. He has taught using Second Life; click here to see a YouTube video about the course. He is also a founder of the Berkman Center for Internet and Society at Harvard. Nesson's tactics in the RIAA case have caused as much comment as the lawsuit itself, according to this article from the Boston Globe.

In the past few weeks, he has tape-recorded a telephone conference with a federal judge and opposing counsel, and then--after US District Judge Nancy Gertner of Boston told him to shut it off--posted the recording on his blog and featured it in a take-home exam on evidence for his students. Nesson also posted dissenting e-mails from academics he had hoped to call as expert witnesses for the defense but who rejected his legal theory that Joel Tenenbaum had the right to download songs under the fair use doctrine of copyright law. And he put up a four-minute recording of his wife, Fern, a former Harvard law student of Nesson's, denigrating the experts as misguided naysayers and one of Nesson's law students working on the case as a "schmuck."

Practitioners and academics interviewed for the article described Nesson's posting of the e-mail messages as "insane," "bizarre and risky." According to one, "the recording industry could try to share the comments with a jury to undermine Tenenbaum's case." On the other hand, "Nesson's transparency might be part of a broader strategy to spur debate and make the case a public referendum on the file-sharing lawsuits." Click here to read Nesson's brief opposing RIAA's motion to dismiss the counterclaims. Is Nesson crazy like a fox, or is he just crazy?

Spanish Court Begins Criminal Investigation into Bush Torture Team

OMG! The April 13 issue of the New Yorker has a Talk of the Town brief article by Jane Mayer titled "The Bush Six." She focuses largely on the author, Philippe Sands, whose book Torture Team (see also here) seems to have sparked a criminal investigation in Spain. Sands is a British Queens Counsel and a law professor at University College, London. He actually is quite a prolific author. I found a very brief note in the Washington Post dated March 29, which states that the judge has referred the case to prosecutors to decide if it has merit enough to pursue.

The "Bush Six" include (in alphabetical order):
David Addington, chief of staff and principal legal advisor to Vice-President Dick Cheney;
Jay S. Bybee, a Justice Department official;
Douglas Feith, former Under-Secretary of Defense for Policy;
Alberto Gonzales, former Attorney General;
William J. Haynes, II, Pentagon lawyer
John Yoo, former Justice Department lawyer;

The Spanish court, with Judge Baltasar Garzón, has begun "...weighing charges that [the six Bush administration figures] had enabled and abetted torture by justifyng the abuse of terrorism suspects." (Mayer, p. 23). Judge Garzón was the courageous jurist who, about ten years ago, was assigned to the case prosecuting Chilean strongman Augusto Pinochet for human rights abuses. The decision in that case was an important precedent in international human rights law, holding that there can be no immunity for even the highest ranked government officials when the accusation is a matter of torture. The BBC, in a profile of Judge Garzón, from September, 2005, has some biographical and professional information, but also this helpful orientation to the Spanish legal system and how these investigations work:

Under Spanish law, judges have the right to try foreigners suspected of genocidal acts that have taken place outside Spain.

Mr Garzon is one of six investigating judges for Spain's National Court which, like many other European countries, operates an inquisitorial system, as opposed to the adversarial system used by the US and UK.

The investigating judge's role is to examine the cases assigned to him by the court, gathering evidence and evaluating whether the case should be brought to trial. He does not try the cases himself.

It is worth following the second link provided above for Sands' book, because the TortureTeam.com web pages include helpful items such as several items of evidence made available online, and an extensive list of coverage by opinion leaders, scholars, media outlets and even a Congressional hearing on the issue.

My colleague, Michael Avery, sent around an April Fools e-mail that alleged that John Yoo had been arrested for crimes against humanity when he traveled to Europe. It's possible that if these guys travel overseas in the near future, such an announcement may not be a joke! This will be a hot potato for the Obama administration, as the Wall Street Journal online already demonstrated today. In an unattributed editorial piece, they state

Judge Baltasar Garzón, an ambitious Spanish jurist, last month ordered prosecutors to investigate six men who served in the Bush Administration on criminal charges related to "torture." None of the prospective defendants are accused of torturing or ordering the torture of anyone -- only of arguing for legal positions of which Judge Garzón disapproves. He asserts that the principle of "universal jurisdiction" gives him the authority to try U.S. officials for alleged violations of international law.

At a State Department briefing last week, a reporter asked Gordon Duguid, the acting deputy department spokesman, for the Obama Administration's position. His reply: "I'm not aware of any contact with the Spanish Foreign Ministry on this. It's a matter in the Spanish courts, as I'm given to understand. I don't have a comment for you on it at this time. The Obama Administration's position on the matters that are under discussion, I think are quite clear."

This is about as unclear a response as one can imagine. Far from being a mere "matter in the Spanish courts," Judge Garzón's action is an assault on American sovereignty and the integrity of the U.S. legal system. And while some in the Obama Administration may be tempted to cheer him on for partisan reasons, they risk helping to set a precedent that could easily come back to hurt them.

On the other side, Amnesty International's blog post ties the Spanish investigation to a concurrent investigation in Britain into the participation of a British "Security Service (MI5) officer known only as Witness B in the interrogation of former Guantanamo inmate Binyam Mohamed during his detention in Karachi in 2002." The blog further calls on U.S. citizens to rally:

In the next few weeks Americans will have the opportunity to reverse this situation without looking to a foreign court to take the lead. The Senate Armed Services Committee is soon expected to re-release its damning bipartisan December 2008 report on the Treatment of Detainees in U.S. Custody reinforced by more than 200 pages of newly declassified material not previously released to the public.

The first version of this report identified those senior officials most responsible for the detainee abuses that occurred in Iraq, Afghanistan and Guantanamo. This expanded version will lay out the evidence of their complicity in compelling detail. The Committee Chairman, Senator Carl Levin (Democrat, Michigan), has already stated that he plans to refer the report to the Department of Justice. The Obama administration will then face the first great test of its campaign rhetoric. The President has said that no one in America is above the law, he will soon have the opportunity to prove it.

The image is a photograph of Judge Baltasar Garzón, from Wikipedia, which credits it to the Presidency of Argentina.

Digital Publishing

Inside Higher Ed published an article by Scott McLemee today that summarizes an article by Sandy Thatcher in Against the Grain, a library newsletter that is not yet available online. McLemee says that Against the Grain isn't "well-known," but I don't think that's true, at least in my library. McLemee is correct, however, when he describes the newsletter as offering "a running colloquy for far-sighted discussion among librarians, publishers, and others in the more scholarly reaches of the book trade."

McLemee's purpose is to summarize an article published by Sandy Thatcher entitled, "The Hidden Digital Revolution in Scholarly Publishing: POD, SRDP, the 'Long Tail," and Open Access." Thatcher argues that

[T]he peculiar challenges faced by university presses have given them an incentive to uses digital resources in ways that put them somewhat ahead of their peers in the world of trade or mass-market publishing. Given the small market for most scholarly titles, academic publishers were in a unique position to benefit from short-run digital publishing (SRDP) and print-on-demand technologies. 'The bane of the entire publishing industry for centuries ... has 'been the need ... to make guesses up front about the lifetime sales potential of each book. ...The quest for economies of scale led to big inventories of unsold books ...'

Digital publishing offers a solution to this problem, according to Thatcher, because "the unit cost for digital printing is flat ... and you don't have unsold inventory piling up. With a monograph prepared in digital format, it is possible to issue it, as the demand dictates, through short-run or on-demand publishing." Positive effects include less damage to the environment, better cash flow, and more willingness of publishers to take a chance on marginal titles. Certainly this would benefit authors and the free flow of information in the long run. Thatcher calls this a "hidden revolution." Further, he believes that "publication of a work in digital format does not preempt its existence as a paper-and-ink artifact, but rather enables it." The biggest problem at present with digital publishing is illustrated books, particularly books on art history, where the quality of the illustrations is crucial. Thatcher is confident that this problem can be overcome, however. McLemee concludes his interesting discussion of Thatcher's article by pointing out that some books belong on your shelves because they "shape your life, or shake it--and you will always want a copy of those around." Others books you read for the information they contain and move on; a digital version of such books is adequate. As McLemee puts it, "some of the less ravishing moments in your readerly experience may involve a handheld screen" and not a physical book.

Darien Statements on the Purpose of the Library and Librarians

Thanks to Jennifer Murray of RIPS-SIS for posting to the list-serve a pointer and link to the Darien Statements. These were formulated at a conference called, charmingly, "In the Foothills: A Not-Quite-Summit on the Future of Libraries." See link here. The conference was co-sponsored by Darien Library and the Connecticut Library Consortium

...on Thursday, March 26th at the Darien Library for a conversation with John Berry (Editor-at-large, Library Journal, New York, NY) and Kathryn Greenhill (Emerging Technologies Specialist, Murdoch University Library, Perth Western Australia) about revolutionary change, youth, service, and civic responsibility, and the future of libraries.

Come prepared to participate in group discussion following both speakers. In fact, come prepared to help sketch out the role librarians should play in defining the future of libraries.

(from the Foothills link) The participants included public libraries as well as university and community college libraries, library organizations and a few library school representatives (see list here). The Darien statement is optimistic and idealistic, grand and beautiful. It is also covered by a Creative Commons license, which allows me to attribute it properly and reproduce it here, for you:

The Darien Statements on the Library and Librarians
Written and endorsed by John Blyberg, Kathryn Greenhill, and Cindi Trainor

The Purpose of the Library

The purpose of the Library is to preserve the integrity of civilization.

The Library has a moral obligation to adhere to its purpose despite social, economic, environmental, or political influences. The purpose of the Library will never change.

The Library is infinite in its capacity to contain, connect and disseminate knowledge; librarians are human and ephemeral, therefore we must work together to ensure the Library’s permanence.

Individual libraries serve the mission of their parent institution or governing body, but the purpose of the Library overrides that mission when the two come into conflict.

Why we do things will not change, but how we do them will.

A clear understanding of the Library’s purpose, its role, and the role of librarians is essential to the preservation of the Library.

The Role of the Library

The Library:

* Provides the opportunity for personal enlightenment.
* Encourages the love of learning.
* Empowers people to fulfill their civic duty.
* Facilitates human connections.
* Preserves and provides materials.
* Expands capacity for creative expression.
* Inspires and perpetuates hope.


The Role of Librarians

Librarians:

* Are stewards of the Library.
* Connect people with accurate information.
* Assist people in the creation of their human and information networks.
* Select, organize and facilitate creation of content.
* Protect access to content and preserve freedom of information and expression.
* Anticipate, identify and meet the needs of the Library’s community.


The Preservation of the Library

Our methods need to rapidly change to address the profound impact of information technology on the nature of human connection and the transmission and consumption of knowledge.

If the Library is to fulfill its purpose in the future, librarians must commit to a culture of continuous operational change, accept risk and uncertainty as key properties of the profession, and uphold service to the user as our most valuable directive.

As librarians, we must:

* Promote openness, kindness, and transparency among libraries and users.
* Eliminate barriers to cooperation between the Library and any person, institution, or entity within or outside the Library.
* Choose wisely what to stop doing.
* Preserve and foster the connections between users and the Library.
* Harness distributed expertise to serve the needs of the local and global community.
* Help individuals to learn and to use new tools to create a more robust path to knowledge.
* Engage in activism on behalf of the Library if its integrity is externally threatened.
* Endorse procedures only if they guide librarians or users to excellence.
* Identify and implement the most humane and efficient methods, tools, standards and practices.
* Adopt technology that keeps data open and free, abandon technology that does not.
* Be willing and have the expertise to make frequent radical changes.
* Hire the best people and let them do their job; remove staff who cannot or will not.
* Trust each other and trust the users.


We have faith that the citizens of our communities will continue to fulfill their civic responsibility by preserving the Library.

I think that calls for Super Librarian.

Follow up on Debtors' Prison

The New York Times ran this story today about the growing phenomenon of courts imprisoning individuals because they cannot pay fees. It is a follow up to the editorial I posted yesterday.

Google Books Conversation

Picking up the Google Books conversation again, after Marie's excellent post, I have recently come across several other interesting criticisms of digitization projects. These are aspects I had not considered.

1. Paul Duguid, at First Monday vol 12, no.8, Aug. 6, 2007, writes an article, Inheritance and Loss: A brief survey of Google Books." Duguid notes the size of the Google Book project, and its stated goal of creating the library of the future, is more and more shutting other digitization projects out of funding and making them seem superfluous. Duguid compares two methods of quality control. Innovative techniques, which could not have existed before the Internet, such as the multi-editing of Wikipedia, for example. By contrast, inheritance relies on recognized name brand -- an earned reputation for quality, such as the New York Times, for instance. The two types of quality control sometimes may complement each other, it seems to me, as what we hope will happen as traditional news outlets learn to incorporate Twitter feeds. But they can also be destructive of each other.

Duguid notes several sources which comment on poor quality of the Google Book scanning -- from Wikipedia links to examples of poor scans, to bloggers' comments. Duguid then evaluates the quality of one particular book Tristam Shandy, which he had previously used to evaluate the quality of the ascii text in Project Gutenberg. Where Project Gutenberg had serious problems with Greek footnotes, marbled endpapers and blank pages in the book, Duguid expected the outright scanning of the Google Book project to sail through Tristam Shandy. Instead, he finds all kinds of problems with the scanning. Pages are cut off at the left, the right, the top or bottom, the text is blurry, or pages are even skipped entirely. Google software that organizes the materials misunderstands lists of illustrations and points to them as the tables of contents. And the copies chosen are problematic -- who decided which edition or copy to scan?! Duguid comments that Google tried to paste innovative quality control of its technology over the inherited quality control of ivy league research libraries through its Google Book Project. This essay is his evaluation of the outcome.

Duguid concludes:

The Google Books Project is no doubt an important, in many ways invaluable, project. It is also, on the brief evidence given here, a highly problematic one. Relying on the power of its search tools, Google has ignored elemental metadata, such as volume numbers. The quality of its scanning (and so we may presume its searching) is at times completely inadequate [14]. The editions offered (by search or by sale) are, at best, regrettable. Curiously, this suggests to me that it may be Google’s technicians, and not librarians, who are the great romanticisers of the book. Google Books takes books as a storehouse of wisdom to be opened up with new tools. They fail to see what librarians know: books can be obtuse, obdurate, even obnoxious things. As a group, they don’t submit equally to a standard shelf, a standard scanner, or a standard ontology. Nor are their constraints overcome by scraping the text and developing search algorithms. Such strategies can undoubtedly be helpful, but in trying to do away with fairly simple constraints (like volumes), these strategies underestimate how a book’s rigidities are often simultaneously resources deeply implicated in the ways in which authors and publishers sought to create the content, meaning, and significance that Google now seeks to liberate. Even with some of the best search and scanning technology in the world behind you, it is unwise to ignore the bookish character of books. More generally, transferring any complex communicative artifacts between generations of technology is always likely to be more problematic than automatic.

Finally, with regard to inheritance as a strategy for quality assurance, the question of quality in Google Book’s Library Project reminds us that the newer form is always in danger of a kind of patricide, destroying in the process the resources it hope to inherit. This remains a puzzle, for example, for Google News. In its free provision of news, it risks undermining the income stream that allows the sources on which Google News relies for quality to survive. It may even be true, in a lesser way, for Google Books. Google relies here for quality assurance on the reputation of the grand libraries it has corralled for its project. Harvard and Stanford libraries certainly do not have their reputations enhanced by the dubious quality of Tristram Shandy, labeled with their name in the Google database. And Tristram Shandy is not alone. With each badly scanned page or badly catalogued book, Google threatens not only its own reputation for quality and technological sophistication, but also those of the institutions that have allied themselves to the project. The Google Book Project’s Tristram Shandy may be, as Sterne said ruefully about his marbled page, the “motley emblem” of its work

2. Johanna Drucker, in the Chronicle of Higher Education for April 3, 2009, writes "Blind Spots: Humanists must plan their digital future." In arguing that humanities faculty must take responsibility for helping to design the research portals of the future, she points to Duiguid's essay. Taking off from his points, Drucker notes:

For instance, a number of us who had an opportunity to be part of town meetings reviewing the recommendations for dealing with the shortage of space at the Library of Congress some years ago came up against a basic issue: What version of a work should be digitized as representative of a work? Is Leo Tolstoy's original Russian text of War and Peace sufficient or irrelevant for future generations? Will those generations prefer access to the Louise and Aylmer Maude translation? Or to the more recent translation by Anthony Briggs? Should we digitize the sanitized version of Mark Twain's classics, purged of language now offensive to readers, or the originals that allow the historical distance of culture and vocabulary to register?

In a similar vein, what if another library's only version of Euclid is a copy of Stephen Thomas Hawtrey's An Introduction to the Elements of Euclid used by Bertrand Russell's brother Frank to introduce the future philosopher to its mysteries of mathematics? If the copy is tattered, missing pages, or has other marks showing it was used by a childishly eager Russell, should that bit of history be put aside for the benefits of scanning a clean, new copy of a 10th-grade geometry textbook? In the 2007 article "Inheritance and Loss? A Brief Survey of Google Books," Paul Duguid mordantly observed the shortfalls in Google's plans to digitize library books. He emphasized that the intellectual tasks of vetting editions and assessing scholarly value for generations to come have to be taken into account from the very design of the project, not reverse engineered later.

The technician might suggest that the cleanest, clearest copy that is most legible in OCR (optical character recognition) and automated search technologies provides the best return on the digitizing investment. With those criteria, selection is guided by technical requirements and constraints designed into the system. That is not "just" an issue of selection but a fundamental feature of functionality and capability, in other words, the design of the digital environment. The typographical features of the long "s" or radical experiments in graphic layout used by the 20th-century avant-garde — markers of their time and place of production — can be quickly sacrificed in a choice of "legible" (i.e., standardized) fonts. The migration of typeset texts into ASCII streams has been an issue of contention in literary and biographical studies since the advent of the Internet. Such debates underscore the fact that properties of texts are informational, not incidental, to many scholarly projects.

These comments go beyond Google Book Project itself, and raise larger questions about digitization projects themselves. In building the digital library of the future, scholars need to be involved. The selection of editions, of copies, of translations, and fonts all mean something to the scholars who study these texts. Librarians also need to be involved. Metadata means something to us, and needs to be handled with more care and detail than is currently the practice. In the rush to scoop up huge swathes of culture, projects like Google Books or perhaps even Project Gutenberg or the Open Content Alliance may be making haste without reflecting carefully on policy decisions. It will be difficult or perhaps impossible to go back after the fact and add, correct or re-do to make the digital library of the future more usable. Should we not have a conversation now about what are the important features we will need or miss?

Vermont Legalizes Gay Marriage!

The first state to legalize gay marriage by legislative action, Vermont overrode governor Jim Douglas' veto with the minimum votes needed, about 40 minutes ago. The Associated Press, at this Boston Globe webpost, with a nice video feed reports the story. The House had the minimum votes needed to override the veto, while the Senate easily made the override.

OOTJ readers who are puzzled about the swan picture I use to illustrate the gay marriage stories should know that the swans at the Boston Gardens were known as Romeo and Juliet for years and years. But a few years ago, just about the time of the gay marriage decision in Massachusetts, by coincidence, scientists let slip to the newspapers that the swans are, in fact, Juliet and Juliet. Which explained why the nest never had any eggs. They still love each other, though.

More on the Google Book Settlement

The New York Times reports on the growing opposition to the Google Book Settlement. Many of the concerns focus around so-called orphan works, out-of-print books that are still in copyright but whose authors are either unknown or cannot be found. Critics believe that the settlement may "grant the company too much power over orphan works ... because it will give Google virtually exclusive rights to publish the books online and to profit from them." Google's de facto monopoly over orphan books will stifle competition and allow Google to raise its prices over time. Opponents are planning to file briefs objecting to parts of the settlement before it is reviewed by the United States District Court for the Southern District of New York in June.

One of the opponents of the settlement is Brewster Kahle, whom I had the pleasure of hearing speak at the Library 2.0 Symposium at Yale Law School on Saturday. Mr. Kahle believes that the settlement gives too much power to Google, and that there are alternatives, one of which involves his group, the Open Content Alliance, whose aim is to digitize materials and make them freely available over the Internet. Currently, 1,000 books per day are being scanned, and around 4,000,000 books should be available by the end of 2009. Mr. Kahle said that the Google settlement will give Google the power to dictate what the public can and cannot read, thereby restricting innovation and creating a monopoly. It enthrones central control and lack of choice. His model is one of open standards that will make information accessible to anyone with an Internet connection and a computer. He is clearly passionate about his work, and it was hard for the law librarians in the audience to discount fears of monopolistic publishing companies, which other speakers referred to as "Death Star" publishers.