Google Settlement, Part II: Samuelson Suggests a Public Alternative
By Norman Oder Jul 8, 2010[Also see coverage of a panel on Google at the American Library Association Annual Conference.]
University of California, Berkeley law professor Pamela Samuelson, a vigorous and thoughtful critic of the pending Google Books Settlement, has collected her analysis in a Minnesota Law Review article, Google Book Search and the Future of Books in Cyberspace.
It's worth a read, not just because she lays out the myriad issues, but also highlights some important facts that have not received enough discussion. And she concludes that there's still time for a library-run major scanning effort, with perhaps a tax credit to encourage authors to make their books available.
Her conclusion:
The future of public access to the cultural heritage of humankind 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.
Reasons for optimism
Samuelson first notes the optimistic take on the settlement: that it will reach new readers, the print-disabled, and boost the capacity of higher education institutions that have not had the means to build a deep collection.
Moreover, the corpus available to researchers "would advance knowledge and lead to development of new technologies, such as automated translation tools." And she recognizes the "pragmatic argument" that a settlement is needed to resolve the transaction costs of reaching rightsholders.
Pricing issues
But she warns of price gouging for institutional subscriptions, suggesting that libraries may be sucked in by an initial modest price; she cites language in the Settlement Agreement that states that a temporary discount "is designed to encourage potential customers to subscribe."
Samuelson also rebuts the contention that Google's reliance on advertising revenue will make subscription pricing a secondary issue. However, she quotes phone conversations with Michael Boni, lead lawyer for the Author Subclass and with John Sargent, a publisher-negotiator for Macmillan, who say they believe that "the big money" would come from institutional subscriptions.
She also suggests that the provision of at least one free terminal in public and academic (but not school) libraries will generate patron demand for such institutional subscriptions. And she warns of potential price gouging if Google sells the institutional subscription database business to another firm.
She notes that the settlement agreement assumes that Google will "use an algorithm to set prices for out-of-print books ranging from $1.99 to $29.99," with an average price to consumers of $8.65—a not insignificant sum in comparison to current prices.
Other reasons for worry
Samuelson also suggests that the presence of the institutional subscription could push many libraries to cut down their physical collections, making them even more dependent on Google.
She suggests that the database may be of limited value to researchers because of poor quality scans and metadata. She notes the lack of a backup plan if Google pulls out, and the absence, as of yet, of sufficient privacy protections.
A library-run alternative?
If the settlement is rejected, Samuelson suggests Google is in too deep to stop scanning in-copyright books, but simply would provide snippets of texts to searchers.
Whether or not it's rejected, she supports a research corpus "available through institutional subscriptions at reasonable prices, which would be run by a consortium of nonprofit educational institutions" and would be "a kind of Human Genome Project-like initiative." Samuelson cites Harvard University Librarian Robert Darnton's proposal to nationalize the Google corpus or, alternatively, a mass digitization project funded by both foundations and the public.
The corpus would have to be maintained in several repositories, in the interest of redundancy. One could be the Library of Congress.
How to get around the copyright problem? Congress, Samuelson says, should allow mass digitization of books from major research libraries, with the books used "for preservation and other legitimate library purposes," but no full-text access without permission.
The permission could be accelerated via a tax credit "for rights holders who dedicate their books to the public domain or at least to noncommercial uses of the research corpus." And, going forward, digital copies of books could be deposited with the Library of Congress, just as print books are now provided.
What about lending ebooks? She notes a digital lending model begun by the Internet Archive. And while she acknowledges that it's unclear whether the Google project or an alternative research corpus would accommodate such lending, library patrons deserve an alternative to buying the book, "hopefully, through library lending."
