Posted by Richard Koman @ April 30, 2009 @ 12:43 PM
The proposed class-action settlement between Google and the authors’ and publishers’ groups would create a wholly new way of dealing with copyright and royalties. For some years, Google has been scanning books by the boatload. Not just old, public domain works as many academic and nonprofits projects had been doing for years, but books fully protected by copyright, as well as so-called orphan works — a concept I’ll explain below.
When authors and publishers screamed bloody murder and filed a huge class-action suit on behalf of pretty much all writers - at least all U.S. writers - Google’s response was surely brilliant. Here’s Google, clearly and obviously violating copyright, and the solution is a settlement that allows Google to continue its scanning operations, monetize them without fear, leverage the contents into its market-dominating search engine — and create a system that protects it from infringement claims from unknown copyright holders.
I’ve been posting about this for the last day or two and quite a few people have questioned just exactly is wrong with this. The short answer is that it gives Google a monopoly in literature, in the broadest sense of the word. Beyond this, the deal - which now looks like it may well be scuttled by the Justice Department - is merely indicative of increasingly troublesome trends within Google:
The company has become a true believer in its own goodness, a belief which justifies its own set of rules regarding corporate ethics, anti-competiton, customer service and its place in society. Tellingly, Google has set aside its “Don’t Be Evil” motto at the very time in which its actions increasingly look evil — all the more so for it protestations that it needs the dominance it claims for the good of the public, the good of the Internet, the good of the world.
Monopoly and orphan works
But let’s deal in specifics. What exactly is wrong with the Google Books settlement? To fully understand this, you have to take a close look at the orphan works issue. I first wrote about orphan works in 2004, when I explained the problem like this in an article for O’Reilly.
Beginning in 1976, Congress dramatically changed the law. In an effort to comply with the Berne Convention, the international copyright agreement, the new (current) law did away with copyright registration, automatically granting copyright at the moment of creation. It set the term at lifetime of the author plus 50 years. It did away with the renewal requirement. And then, to put the icing on the cake, in 1992, Congress retroactively applied the elimination of the renewal requirement to all works first published during 1964 through 1977.
These changes to the copyright laws had an unintended consequence: they created a class of so-called “orphan works,” works that would have gone out of copyright when their creators failed to renew a copyright claim under the old law, but which are now kept in prolonged copyright. (It’s an irony of the law that term is defined by the “lifetime of the author,” but that no registry of who the authors are or whether they are dead or alive is maintained.)
The Google book deal does away with this problem by paying orphan authors to come forward to get paid by Google. That means Google gets to use orphan works. And no one else does. The Internet Archive never scanned orphan works, much less clearly copyrighted works. They don’t get to use them. Google does.
Enter the Justice Department, which is said to be having conversations with Google and other players, over the antitrust implications of the deal. And authors, academics and the Archive are coming out swinging against it. How in trouble is this deal?
I talked to tech analyst Rob Enderle, who thinks this book deal “is going to get ugly.”
When you get the Justice Department involved, you gotta think there are issues. And this is not a Republican adminstration; the Democrats are less fond of monopolies. This is where Google’s lack of good public relations applies. They remind me of Microsft in that they’re not all that well connected, even though the CIO is fond of the company.
Indeed it appears that Justice’s involvement has escalated from “conversations” to “inquiry,” according to the Times. Last time Justice started inquiring about a Google deal - the proposed Google-Yahoo adverstising arrangement - things ground to a halt.
On Beyond Google
The bottom line here is that Google is unlikely to get what it wants, although, ironically, it may help make orphan works widely available to competing sites, Enderle thinks.
The positive side to this is that the scrutiny may help a lot of people get access to orphan books. I don’t see this stopping but there’s a real effort to reduce Google’s role.
Is that appropriate? “I have a problem with one company having that much control over the world’s literature. Google is trending in ways I don’t like,” Enderle told me.
Resistance to the Googleplex is showing up in lots of other ways, too. Like people stopping Google camera cars in Britain.
That story showcases that Google has this end-justifiies-the-means attitude. When a company gains excessive power, it becomes very difficult to separate the needs of the company from the need of consumers or the population as a whole. I’ve been looking at the history of evil lately. Most evil leaders actually feel they are leaders.
Looping back to the top of this piece . . . Google, like Microsoft, like Mussolini, believes in the greatness of what they are doing. They do not necessarily feel they need to be constrained or that it would be a good thing if they were constrained. They may see themselves as using their power to make more information available, to enable more innovation. And if they happen to make ungodly amounts of money in the process? So much the better.
Consider, for example, Google’s “Don’t Be Evil” motto, now discarded. In their infamous IPO filing, Google said:
Don’t be evil. We believe strongly that in the long term, we will be better served—as shareholders and in all other ways—by a company that does good things for the world even if we forgo some short term gains. This is an important aspect of our culture and is broadly shared within the company.
While it’s certainly within management’s control to decide on whether gains should be short-term or long-term, this statement comes awfully close to saying it’s going to forego gains in the interests of pursuing the founders’ world view of “good things.” But a company’s primary duty - management’s fiduciary duty under basic securities law - is to provide a return on shareholders investments. (Investors put money in to earn a profit, not to do good things.) From the outset, Google exclaimed that its goals were superior to the banal interests of shareholders, that it would decide on what things were good, regardless of the detriment to shareholders.
Enderle said he’s been looking at evil in the world and it comes down to this. The evil-doers never see themselves as evil: they seem themselves as heroes. The worst men in history saw themselves as so important, so great, that they could not be and should not be restrained by the laws that apply to others. Isn’t that how Google sees itself?
The potential for Google to do harm is vasty greater than it was for Microsoft because they are controlling information. Google can make Microsoft at its worst look far less evil. Google could be gaining absolute control over vast amounts of work. They were going to be a different company. They weren’t going to forecast their outlook to investors.
When it comes to being evil, Google doesn’t get that you dont get to define yourself. It’s how the world defines you. Google is going down the same path Microsoft went down — with a jetpack.
As a lawyer and technology writer, Richard Koman brings a unique perspective to the blog's intersection of law, government and technology. See his full profile and disclosure of his industry affiliations.
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