NYU prof Siva Vaidhyanathan has been one of my favorite commentators on the Google Print debate because of his pragmatism. Today in the Chronicle of Higher Education he has his first non-blog analysis of the case.
His main concern is that Google has bet not just the company, but the whole internet on this case. If it loses, it could take Kelly v. Arriba Soft with it, and that would affect the very legality of search engines as well as all sorts of future innovation. But this is a fight we were going to have sooner or later, so why not now? After all, as he points out, this case is a clash between web norms (free copying with opt-out) and real world law (copying by permission only). It has to be settled eventually.
Vaidhyanathan understands that this case is nothing near a slam dunk for Google as so many seem to portray it. He points out that Kelly may be Gospel in the Ninth Circuit, but this case has been filed in the Southern District of New York, home of Univesal v. MP3.com and NYT v. Tasini. Pragmatically, he notes that the former court is next to Silicon Valley, while the latter’s neighbors are the big publishing houses. Kelly was rightly decided, but, if so inclined, another court won’t find it difficult to distinguish this case from it.
As a library scholar, Vaidhyanathan’s other concern is that creating a universal searchable book index should be the business of libraries, not multi-billion dollar corporations, and he feels that librarians are abdicating their responsibility. Libraries are institutions meant to last ages while companies come and go, he says, so the former are the ones who should be entrusted with our collective knowledge and cultural heritage. But as a pragmatist, he recognizes: “This hardly seems like the right time or country to call for a massive public commitment of resources to benefit the public good, however.”
This is an understandable concern. What bothers me is that he seems critical of privatization and outsourcing generally. Precisely because “a massive public commitment of resources” isn’t going to materialize anytime soon should we embrace private solutions. As he smartly notes here, and has noted elsewhere before, the participating libraries get to keep a copy of the scanned books. That should help allay his fears about the permanence of the index. (I also think this ‘second copy’ will cut against Google in the final fair use analysis.)
It’s also not as if Google won’t face competition. Yahoo! and Microsoft have announced their participation in the Open Content Alliance, a sort of open source scanning project that only plans to copy public domain books. My guess is that Yahoo! is playing wait-and-see and letting Google fight this fight. If Google wins, I suspect it wouldn’t be too long before it adds copyrighted books to its index. Not only will competition help address the permanency issue, it will also address another of Vaidhyanathan’s concerns: privacy. After all, given a choice, you won’t want to patronize a service that unquestioningly hands over your “library” records over the FBI.
[Cross-posted at my site.]