Addressing Google Print Concerns

Unlike Larry Lessig, I’m pleased to have James DeLong on our side in the Google Print debate.

I’m especially pleased that Lessig and DeLong agree on the fundamental principle that should be used in evaluating the issue:

Causby was entitled only to the decline in his property value, not to a share of the gains from the air age. Truly, if there is a principle here, that should be it. The baseline is the value of the property BEFORE the new technology. Does the new technology reduce THAT value. Put differently, would authors and publishers be worse off with Google Print than they were before Google Print?

This is something Jerry and I have argued about in the past. I think Lessig and DeLong is correct: the appropriate standard is whether the new use harms the market for the product that existed before the technology was created, not whether there is any profit potential in licensing the new technology. The publishers are, in effect, claiming that any new value created using their content belongs to them. I think that claim is contradicted by the priniples of America’s copyright system, and by past precedents on technology-related developments.

I’d also like to offer some suggestions on how two of DeLong’s concerns could be dealt with:

Digital copy of each book goes to the participating library, and the only restriction is that it abide by copyright law. There can be no guarantee that the library will impose security akin to that adopted by Google.

It seems unlikely that the libraries would build their own search engines for use on the web at large. Presumably they have more rights than Google does to distribute library materials outside of their premises, so they wouldn’t be able to offer anything that Google doesn’t. And Google has a lot more resources to offer a world-class service. More likely, Google will make a customized version of Google Print available to those libraries for their own use.

What the libraries might do with the materials is two things. One is that they might create an internal search engine that displays more of the copyrighted materials than Google’s search engine does. I’m not sure where copyright law comes down on this, but it seems likely that electronic copies of library books viewed on the premises would be far more likely to pass muster as fair use than when the same is done by a private company for access by the whole world. There might also be niche electronic services they could offer, such as an enhanced cataloguing system for librarians allowing them to view the pages of a book without leaving their desks.

The other use of the digital copies is for archival purposes. If a book is misplaced or destroyed, an electronic copy ensures that the information contained in the book isn’t lost.

Notice that either of these uses are much easier to secure than Google Print will be. For the internal search engine, it’s a trivial matter to set up a firewall to prevent outsiders from interacting with the intranet’s web server. That would mean that in order to steal the books, you’d have to physically sneak into a library, plug your laptop into their network, and hack into the web server from within the building. Needless to say, that’s far less likely than someone hacking into Google from the comfort of their home in Russia. And for the archival purposes, it’s likely that the files wouldn’t be put on the network at all, which means someone would have to break into the library’s vaults and steal the physical media.

So while libraries probably do have an obligation to keep their electronic copies secure, I don’t think they’ll have any trouble doing so. The five libraries they’re working with are large institutions with budgets plenty large enough to invest in a firewall and a safe.

The law has no doctrine that allows Google to be special. So what Google is allowed to do, others can do. The authors and publishers can legtimately object to having a huge burden of policing imposed on them.

I think the precedent that should be set is that making electronic copies is generally fair use if they are never distributed in a matter that would otherwise violate copyright. It’s not clear to me how this would impose a large enforcement burden on copyright holders. The set of individuals and businesses who want to create book search engines, or who would try to claim the right to scan books for similar purposes, seems to me like it would be quite small. There are maybe a hundred web search engines of any consequence in the world. A book search engine is even more difficult to build–at worst, there might be a new one a month launched. I think examining one search engine a month for security flaws is a burden that the entire publishing industry can reasonably bear.

Will others attempt to use the Google Print case as a bogus justification for infringing activities like distributing the entire text of copyrighted books online? Of course. But I don’t think most of them will be able to make a very credible case in court. Google has put an incredible amount of work into making sure that their system protects copyright holders’ rights and follows copyright law. If the copycats fail to show similar care, the publishing industry will be able to dispose of them in court quite easily.

I’m curious to know more about what kind of precedent DeLong envisions a ruling for Google Print creating, and why he thinks such a precedent would impose unreasonable enforcement burdens.

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