Publishing, Copyright, Google

I'll start with a confession: I was wrong about the Google Books Project. And my wrongness is underscored by just how right Siva Vaidhyanathan--whose worries I dismissed at the time as contrarian library-fetishization--was. It's true that a happy ending could still emerge, but if it does, it's likely to be in spite of Google, and in the teeth of its opposition. My mistake is perhaps instructive, because it exemplifies some cognitive biases that bedevil all of us: wishful thinking, overvaluing the causal impact of character traits (and individual agency, generally) relative to structural tendencies, and an unfortunate tendency to take sides--if only affectively, subconsciously identifying one's own interests with those of one party or another--when powerful entities clash.

A quick summary for those who aren't obsessed with this stuff: Google partnered with some libraries to scan a zillion books, some public domain but most out-of-print but still in copyright (generally, stuff published after 1922), insisting that this was fair use (and thus legal) because copyright holders could opt-out, and only snippets would be shown of in-print books. Unsurprisingly, various authors' and publishers' rights organizations sued. I was hoping for a big, triumphant showdown: I thought that Google (and perhaps only Google), with its ridiculously deep pockets, its "Don't Be Evil" motto, and its justly-renowned lead copyright counsel William Patry, possessed the means, motive, and expertise to bring forth the 21st century's Betamax Case. A big win for Google would safeguard the Book Project, and that alone would be great, but I cared mainly about doctrine: a high profile victory for fair use (and the doctrinal emphasis on use rather than copying this would entail) would give legal protection to innovators everywhere.

Well, not so much. Google settled, and why wouldn't they? Google's mission is to make cool software and money, not to fix copyright law. The settlement places some minor constraints on the Book Project, true; I'm sure some engineers are annoyed. But that's a small price to pay for an effective legal monopoly over the world's digital library. Even if Google weren't one of the only companies with the cash to take a lawsuit like this to the Supreme Court, it's no longer possible for any of the others to win. Why? Because any potential competitor would find themselves caught by the circular reasoning of the Coursepack cases: if someone else (Google) is paying a license fee, it means there's a market for license fees, which means your use is a commercial one, which means your case for fair use is much weaker.

So, what now? I wish I knew. Some libraries seem to be fighting against this; we'll see if that comes to anything. I suspect we're at the point where only a statute will do; but Congress' record on copyright is terrible, and terribly predictable. Change, here, is just not something I can believe in: the inherent diffuse-benefits, concentrated-costs collective action logic will only be exacerbated by the inevitable cries of "Look out, socialism!" and "Respect international law!" that any attempt to scale back copyright is sure to provoke. I suppose that if Google gets a little too greedy in its pricing and access policies, the resulting backlash might scour away some bad law. But let's be honest: regulation as a quasi-public entity is at least twice as likely. Even the best (realistic) case, a statutory fee schedule, represents a massive and needless giveaway, and has insidious consolidation effects besides.

I blamed my optimism on human nature, but really, it's not like I wasn't warned. Here's what Bill Patry himself--the heroic knight in my imagined good-vs.-evil showdown--said in his farewell to the blogosphere:

Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.