Participants in the conference, which was sponsored by Harvard University’s Berkman Center for Internet & Society, focused extensively on the ramifications of the 2008 settlement reached by Google, the Author’s Guild, and the Association of American Publishers about copyright infringement caused by Google’s book search function.
As part of the Google books project, Google formed relationships with several major libraries to scan their collections and make them searchable. Author’s Guild and the Association of American Publishers filed a class action lawsuit against Google in 2005 for copyright infringement, claiming Google was creating digital copies of copyrighted material for commercial use.
The massive settlement, which was reached in October 2008, devises avenues for Google to pay royalties to authors through the creation of a central book rights registry. By paying royalties, Google will be able to index the books and display snippets in search results, as well as up to 20 percent of each book in preview mode. Google will also be able to display ads on these pages and make available for sale digital versions of each book. Copyright holders will receive 63 percent of all advertising and e-commerce revenues associated with their works.
Harvard Law School Professor Lawrence Lessig warned that the Google settlement, which goes before a New York District Court judge in October, is too complex and does not allow for enough open access to the material in the Google books database.
View webcast of Lessig’s talk.
Citing the maze of permissions and licensing needed today to make documentary films, Lessig said the Google settlement “moves us down a path where books become documentary films, when the ecology of access we have to books in the future is like the ecology of access we have to documentary films today,” he said.
“We’re not building so much a digital library but a digital bookstore – worse than a digital bookstore. It’s a digital bookstore with the freedoms of a library of documentaries, which in my view, is no freedom at all,” added Lessig.
The issue, however, is not Google, which is acting as a profit-making company should act, Lessig said. Comparing Google’s actions to that of a tiger’s life-cycle, he explained that cubs are cute and adorable, yet adults are dangerous. It’s in the nature of the tiger – society doesn’t fault the tiger because it grows up to be fierce.
Similarly, Lessig explained, it’s up to academics, politicians, researchers, consumers, and citizens to resolve the questions raised by the new “information ecology,” rather than to leave it to Google. “We don’t give our children tiger kittens, and we don’t trust our culture to kittens that turn into tigers,” he said.
Lessig made the case for a new kind of copyright system that would deal with the new challenges posed by digital technology. He argued that a registration system, rather than antiquated laws from the print world, could clarify which materials need copyright protection and which should be in the public domain.
But Lessig criticized the Google settlement’s registration system because it “documentarifies” so-called orphan works—books and materials for which no author can be located. “It imposes such enormous transaction costs on getting access to orphan works, it guarantees that they remain orphans,” he said.
Despite what Lessig called the “insanely” difficult questions raised by the emerging digital “information ecosystem,” participants were upbeat about moving forward. As Harvard Law School Professor John Palfrey ’01 succinctly put it: “It’s not game over.”
“Those of us who are queasy about or skeptical about the settlement have a particular challenge on our shoulders: What do we think would be better?” Palfrey asked a packed Pound Hall classroom.
Admittedly, Palfrey said, he and other scholars are five years late to the game. Although there have been efforts by universities and public libraries to create open digital libraries, including Open Knowledge Commons, Google has become the chief player in this space.
Others, like Siva Vaidhyanathan, associate professor of media studies and law at the University of Virginia, applauded Google’s efforts with the Google books project. “Google’s explicit mission is to organize the world’s information and make it universally accessible–that’s a pretty stunning mission,” he said. “It doesn’t sound anything like the mission of any other firm ever in the history of the world, with the possible exception of the university in which we sit.”
Vaidhyanathan, who participated in a panel discussion with Palfrey and Maura Marx, executive director of Open Knowledge Commons, was quick to add that although Google’s overall mission is commendable, consumers ought to be wary.
Because “Google does web search so well, we haven’t fully interrogated just how badly Google does book search,” Vaidhyanathan said. Google’s search method is “great for shopping; it may not be great for learning.” Moreover, he said, Google is a corporate entity, rightly beholden to its own interests, not the public, no matter that its informal motto is “don’t be evil.”
Vaidhyanathan argued for the launch of a “Human Knowledge Project,” similar to the Human Genome Project, which was publicly funded, to catalog material and to make it universally accessible world-wide.
The final panel discussion took up questions related to orphan works. What might truly open access to orphan works look like? Would it be a public domain to claim open, fair, and free use of orphan works? What is the role of Congress in shaping this critical aspect of copyright policy?
Panelists included: HLS Clinical Professor Phil Malone, director of the Berkman Center’s clinical program; Jule Sigall, previously worked in the U.S. Copyright Office and now works for Microsoft; James Grimmelman, associate professor at New York Law School; Eric Saltzman ’72, filmmaker and member of the Creative Commons board of directors; and Lewis Hyde, professor at Kenyon College and current fellow at the Berkman Center.