Unsettled: Questions about the Google Book SearchSettlement | Peer to Peer Review

Barbara Fister mulls the latest changes, and has some worries.

Barbara Fister, Gustavus Adolphus College, St. Peter, MN -- Library Journal, 12/10/2009

When I first wrote about the Google's effort to digitize major libraries back in 2005, I found my initial awe modified by both the inevitable legal challenges that would follow and by a number of practical limitations, particularly for the novice researcher. "Students dislike reading sustained texts on the computer," I wrote then, "and are reluctant to rely on sources that they cannot hold in their hands. Though full-text articles are popular, students almost always print them out so they can sort, compare, and annotate them, consulting them multiple times as they compose their own texts."

 This still seems to be the case. When our campus started rationing printing this fall, charging students five cents per page after they run through a 600-page allocation, students were outraged. They couldn't possibly afford to pay for the printing they had to do for their papers and assignments. Reading on the screen? No way. It's too hard to take notes, and besides it causes eyestrain.

The latest version of the Google Book Search (GBS) settlement doesn't resolve my ambivalence. A digitization project that at first glance was awe-inspiring in its audacity is . . . well, a lot more complicated in reality. Full disclosure: I haven't read all 377 pages of the amended settlement. Fortunately, cleverer people than I have. It seems clear that the new revision addressed concerns of some copyright holders, but has less to offer academics and librarians.

Smaller, still problematic
The most striking change is that the agreement covers a much smaller universe of scanned books, only those published in the US, UK, Canada, and Australia or registered in the US copyright office. Jonathan Brand, author of the third update to the aptly-titled Guide to the Perplexed, estimates "perhaps as much as 50% of the titles in the research libraries partnering with Google are not in English; and most of these foreign language titles probably were published outside the U.S. and were not registered with the Copyright Office."

Other issues that remain problematic in this amended settlement were nicely summed up in a series of posts at the Electronic Frontier Foundation's Deep Links blog, all of them related to core library values.

First, privacy. We've gotten so used to making micropayment of private information in exchange for convenience, we underestimate the potential impact this project could have on the freedom to read. "The products and services envisioned by the proposed settlement," the EFF points out, "will give Google not only an unprecedented ability to track our reading habits, but to do so at an unprecedented level of granularity. Because the books will be accessed on Google's servers, Google will not only know what books readers search for and access, but will also know which pages they read, how long they stayed on each page, what book they read before, and which books they access next."

Apart from the implications this ability to read over our shoulders and take detailed notes has for intellectual freedom, the potential risk of censorship runs deeper. Rightsholders will be able to change the record. Not only can they remove books (leaving no trace the book was ever there) but they have the right to alter the contents of books. The EFF also points out that the scale of the project may lead people to rashly conclude that if they couldn't find it on Google, it must not exist. If people assume this is the last library, removing a book or passage of a book will have a significant impact.

Just as worrying, Google reserves the right to remove books for any reason. Even if one takes them at their word and assumes they won't be evil, they may someday sell the entire project to a company with a different motto; Evil R Us, perhaps.

Monopoly game 
And then there's the matter of one company offering subscriptions to a unique product that most college and university libraries will want as well as their extraordinary control over orphaned works. In the absence of legislation that would make it easier to use works with uncertain copyright status, Google will manage the rights to millions of books. The EFF predicts that the Justice Department will continue to investigate antitrust implications, but there's more at stake:

"This is not just a simple market transaction between commercial entities. Google is building an enormously important public resource, a task it can only undertake with the blessing of a federal court. The public deserves a solution that is not 'barely legal,' but that instead encourages real, robust competition. As written, without some modification or legislative adjunct, Settlement 2.0 does not do that."

Pamela Samuelson also argues that a class action is not an appropriate way to shift control over so much information. "Legislatures are the proper venue for radical restructuring of markets, not private lawsuits where secret negotiations among a few firms can yield a deal that works better for them than for thousands or millions of others who will be bound by the deal if the class action settlement is approved."

Elsewhere, she and 63 other law professors  assert that the interests of academic authors were not well represented by the Authors' Guild, whose members are more concerned about commercial exploitation of their writing and who are in the minority of the authors whose books have been scanned in academic libraries. The lawyers express concern that allowing a commercial enterprise to have monopolistic control over so important a resource will alter the "ecology" of access.

"We believe strongly that the public good is served by the existence of digital repositories of books, such as the GBS corpus. We feel equally strongly that it would be better for Google not to have a monopoly on a digital database of books. The future of public access to the cultural heritage of mankind embodied in books is too important to leave in the hands of one company and one registry that will have a de facto monopoly over a huge corpus of digital books and rights in them. Google has yet to accept that its creation of this substantial public good brings with it public trust responsibilities that go well beyond its corporate slogan about not being evil."

Not so final analysis 
At this point I am as ambivalent as ever about Google's extraordinary "moon shot." From the start, I was concerned, as Rory Litwin was, about the transformation of libraries' collections, developed over decades, into a monopolistic commercial venture, one that depends on lowering privacy barriers to function. I was hopeful, back then, that it might establish a new understanding of fair use that would be of benefit to other digitization projects. I didn't foresee the development of a registry that would enable unprecedented exploitation of books—the majority of published books—that linger in an uncertain copyright limbo.

I was then and still remain skeptical that GBS will transform the way most people tap into the knowledge found in books. For scholars who mine vast research libraries for obscure nuggets, it holds promise, and the limitations of poor scanning, inadequate metadata, and now the exclusion of most works in languages other than English are of serious concern. But for the undergraduates I serve, ones who find our academic library of 300,000 volumes intimidating, its sheer size is actually a drawback.

As Ranganathan said, the library is a living organism. I'll leave the Panglossian vision of the universal, final library to others and get back to tending my own garden.

Barbara Fister is a librarian at Gustavus Adolphus College, St. Peter, MN, a contributor to ACRLog, and an author of crime fiction. Her next mystery, Through the Cracks, will be published by Minotaur Books in 2010.

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