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Open Access, Harvard, Google Books, and a New Long View
Open Access, Harvard, Google Books, and a New Long View
I have been repeatedly critical of the possibility of a settlement between Google, the publishers, and the Authors' Guild, but a recent exchange with a friend has given me pause, and forced consideration of an alternative way of analyzing aspects of this issue.
The perspective ultimately derives from the recent, significant decision of the Harvard University Faculty to support open access publishing, establishing a written opt-out requirement.
In my recent exchange, my friend counseled to take a long view. I have been attempting to peer into one dark room, and he suggests another, in a different part of the house.
Support universities and the libraries for open access scholarship, find and define fights on looming horizons, and worry less about the thicket of alternative outcomes for the content that may well find its way to greater access in Google Book Search.
To reach that zen point, consider the options in the battle over rights: settlement, litigation, and legislative action.
The immediate alternative to a negotiated settlement between Google and the publishers is litigation, and while that litigation might ultimately run in favor of Google (and universities and libraries, which are intrinsically allied with Google on many of the ultimate goals, notably in a more healthy determination of fair use), it might not. If Google were to lose a litigation, the goals of universities would be set back -- painfully set back -- for an indeterminate period.
If neither settlement nor litigation proffered relief, intrusive legislative action would loom. As with litigation, legislative action might well clarify both cleanly and fairly the difficult issues confronting copyright. Particularly in the near term, they might not. The painful experience of orphan works suggests a legislative morass. With many diverse IP holders involved, with mixed aims and unsure of their ultimate interests, a decisive Congressional embrace of an innovative exploitation of content is not the mostly likely outcome. On the flip side, the rights issue might be worth embracing with a strong, principled stance. If legislation went grossly awry for fair use and access, the contradictions of the current copyright regime might as a consequence be fatally exposed; a victory for IP owners might wind up being tenuous and short-lived. Overall, this is difficult territory to predict.
If there were a settlement, the greatest risk to access of the covered books is the establishment of a de facto monopoly, with high barriers to entry. These could be thrown up in a variety of ways. Second guessing derivative outcomes is quite difficult, and if a settlement offered attractive terms and conditions (from the perspective of the publishers, authors, and the search engines, not necessarily the participating libraries), it is conceivable that Microsoft/Yahoo might be able to form an attractive competitive alternative for publishers and authors -- if that combine were to decide to enter the digitization game, in Google's wake. However, it is not at all clear to me that Microsoft sees this as both desirable and obtainable, and it may not be structurally in a position to pursue it. I feel this is one of the greatest dangers of the conclusion of conflict through negotiated agreement.
The perspective gained from weighing the costs and outcomes of settlement, litigation, and legislative action can take one into various paths. Everyone must acknowledge the bravura of Google for launching a bold game of digital poker, and seriously evaluate the conundrums facing content owners seated unexpectedly at an unfamiliar cloth-covered table, after decades of playing backgammon for far lower stakes.
If one then approaches this from the perspective of transformation -- that the vast majority of content will be under open access licenses in 100 years -- we should encourage a familiarity with 5-card stud. The goals for the libraries in the game, if they choose to compromise and embrace a settlement outcome, are clear: get the best goddamn deal possible, the largest pot for the greatest number of your colleagues, most of whom are not at the table with you, whilst knowing that you will be playing against these poker partners in the future.
We're watching.
2 comments
I suspect that your anxiety is that Google are being two faced or will be unscrupulous about their pre-emptive advantage, but they may simply be pushing the envelope for a broader and more practical understanding of fair dealing in a digital age. If that is correct, the publishers can only win by embracing that platform themselves. For example by printing a better copyright notice in the front of the typical book something along the lines of:
"this title and its text may only be databased for the purposes of automated text-searching and limited display of search results, and where such searching is not performed for commercial advantage"
I found your site accidentally today. Keep writing. It's good stuff.
Google is a corporation; one that has world domination market goals. I believe it is naive to think moderation or living author input/ control will be Google's way of handling living authors' works.
The larger view is there will be/ are competitors to Google's 'scoop up all work by others' model.
Competition tends to deepen exploitation, as well as thrashing about for new ways of exploiting 'resources'.
However, exploitation, thy name is Corporation. A corporation is different than a mom and pop shop that sees its customers daily and must have reasoned relationship with them or else go out of business.
"No expoitation" is not a corporate principle. Despite Corps speaking otherwise, exploitation has never been, never will be off the table... although it is often done 'off the books'.
Exploitation, whether iol, gas, or 'properties' and 'audiences,' is equal to the concept of 'Corporate.' Given what we have seen in x-rays of legal issues re many corporations in the last 50 years, Phillip Morris, Enron, and many more, it'd be naive to think otherwise.
I like Mr Hodgkin's proposed copyright notice. It'd be interesting to see if it vetts well legally too.
Most authors I know, including myself, praise any group that preserves the old falling apart and mold filled books that are doomed if some expensive option (temp controlled rooms, all archival paper storage containers etc) isn't maintained. I am sympathietc to university libraries and researchers for that reason alone... their joining up google book scan.
Projects like Google highspeed scanning endeavors, seem a good alternative. But, will all our old research books be completely open and accessible without charge, or will they become like JSTOR, availible NOT to the masses?
There are so many questions Google, which has such vast broadcast resources, and such huge advert budgets, has not answered so that the general public, let alone those impinged on, know the facts. Repetition from Google about who and how accesible books scans would be, who each scan 'belongs to' as intellectual property, who is in control of WHICH excerpts, how many photos, what proprietary materials... all these Google has only scattershot broadcast, and not well. Who owns what, who has free access ad infinitum, needs to be rerpeated by Google almost ad nauseum if they want their machine to be transparent and clear.
Author's opting out of Google's thus far, "grab without permission of living authors' works', has been a miserable complicated process requiring legal proofs that the ms even belongs to each said author. Time spent in Google's behalf, instead of writing, is not time well spent.
It's simple, even though some want to make the Jesuitical zigzags: Someone comes to your home, takes your dog to put at stud, says in order to prevent this you must go back in all records, appeal to a legal entity for verification, to prove dog they took is really yours.
Simple permission beforehand would have sufficed to strengthen rather than rend.
Google pr, at the start of this scanning/ sqatting, would have done far better to approach authors with courtesy and asking, instead of courting a very few to join up with Google on their scanning project board as 'advisors.' One author canot 'advise' for all authors.
To think that authors might be a monolithic group that doesnt understand the battle field, would be naive. They are fierce about protecting their works from encroachment, for they have done the work in the mines to bring the work to light, batting aside wanna bes, detractors, indifferent people et al.
Google encroached not on a book ony, but on the intense 'work of one, pulling alone in the mines...' the livlihoods; that is, the years of work that living authors have poured into what they hope is a work that will be useful and good.
Authors want among other things, total access to all scans done of their own works by Google or whomever. Authors want complete control over their own works. Google is proprietary thus far; what is yours is ours; what is ours is not yours.
You can techspeak day and night, but with Google planners ignoring attention to the humans who are living authors, without convening with those who have done the work that Google seeks to colonize, without bringing all living authors as partners WITH Google instead of usurping land and calling it cultural advancement... and by trying to compare all living authors' needs to University Libraries needs-- which have vastly different finanacial interests.... well, it wouldnt be the first time a corporation with a good idea faltered because they grabbed first without asking.
I am watching Google stock go down down down. I would like it not to, since I own some. Google has some great ideas. This part however, about taking living authors' work without permission, and suddenly requring authors take their precious time to deal with the Google hierarchy to opt out, well, it was one of the less smart moves Google made.
Stockholders dont like to see lawsuits that, with forethought, could have been avoided.
just my .02. Had I more time, this would have only been a paragraph's worth.
All best.
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