SIVACRACY.NET

Derek's post title is "Google is not a library, but so what?" This, frankly, saddens me. It means that somehow the understanding of the role and nature of libraries has decayed to the point of being "information warehouses." Ugh.

There are some very heavy "so whats" about libraries. I can't go through them again. Search back on the posts about Google and libraries over the past four months and you can get them. Meanwhile, can I get a shout out from some more librarians on this issue? Let's get control of this debate, please. We can't let the technologists and lawyers tell librarians what their job is and keep making facile comparisons between a company that merely ranks things and the process of effective and ethical information organization and management.

Bluntly: Librarians have ethical codes. Libraries have public duties and oversight. Is that enough "so what?"

Ok. Here is part of Derek's response:

... In fact, it's my hope that others will - so far as I know, the libraries have cut a non-exclusive deal, and other companies are interested in getting into this space.� Google's responsible to its shareholders, but it's also responsive to consumers and the market.� Other companies will compete to provide consumers with the most useful version of this service.� Siva seems to worry about the interaction between Google Print and Google's closed search algorithm, privacy policy, and potentially restricting some uses. But if consumers don't like that, a competitor can hopefully offer them a different service.

I'm more concerned with copyright holders having such an extensive exclusive right that they get to control who can to create a Google Print-like service.� A Google loss will choke off competition.� In many cases, the economic inefficiencies of copyright as monopoly are worth the trade-off for greater production of creative works.� But not in all cases, and I'd say not in this one for several plausible reasons, most importantly because the potential injury to copyright holders is minute, the potential benefit to them is significant, and the potential public benefit is even greater.

Can the market satisfy all our public policy concerns?� No.� But Google can be a private company and still fufill public policy objectives.

First, let me assert once again that Google of 2025 most certainly will not resemble the Google of 2005. It might not even exist. Think about it.

Ok. I will go farther than Derek on one point: copyright holders would suffer absolutely no harm from Google Library. But that's not the point. Courts don't care about real harm. They care about potential harm to potential markets and they take the word of the plaintiff to be the last word on the question. The exclusive right to copy is the exclusive right to copy. The only exception to that right that courts would consider demonstrates a clear public benefit. The public benefit here is not so clear to courts (although it is to Derek and me and most Sivacracy readers). The private benefit of free-riding is.

Saying "where is the harm?" (the Google corporate refrain) reveals an unwillingness to recognize the extent to which real-world effects influence most federal judges in copyright cases: not at all. Congress has made it clear that it does not care about real-world effects. Courts have as well (see the 9th Circuit in Napster or the Supreme Court in Grokster). All Congress cares about is the trump cards it can deal out to copyright holders. And courts tend to respect that even if it makes no sense or harms the public (see Eldred).

So just as the widespread worship of Google baffles me, the widespread faith in the reasonableness of courts (especially SDNY and the 2d Circuit) baffles me more. Have we not learned any hard lessons from the last few years? How often since Feist has a federal court shown that it "gets it?" Certainly, in Kelly. But Kelly is no longer settled law. Google Print/Library might kill Kelly. If we get a very different indexing/cacheing decision out of the 2d Circuit then the Supreme Court (wild cards all around) will have to choose between them. And must I remind everyone that Ginsburg is now the most dominant copyright voice on the court? I suspect the courts are exhausted by all the hard thinking we have made them do over the past few years and they are in fact more rigid, more fundamentalist, than in the recent past. The copyright moral panics have made a difference. And this one is no different.

And have we not learned not to count on private industry to stand up for principle and the public good? Where is the consumer electronics industry now in the DRM fight? Derek seems to have faith in something called "competition." I have not seen this mythical beast for many years. Google can only do this project because it has this amazing super-secret patented scanning machine. It controls the patents on it. There shall be no competition unless some other firms actually licenses the electronic files from publishers (a market that would dry up if Google continues).

I can't believe I have to remind anyone of this: DRM, nondisclosure, and patents destroy competition. That's why we have them. They are what Google depends on to do its job. These are not trivial problems. These are not neutral technologies. There are great complications and problems here. We should not be blind to them.

Again agreeing with Derek -- "a Google loss would choke off competition." Exactly. Before Google loses, there is a crowding-out effect. After it loses, there will be a chilling effect. Meanwhile, publishers fear that a market that Amazon created for them: "search inside the book" licensing, will evaporate. Worse, of course, is possible. A bad loss threatens everything we hold dear about the Internet.

And I am still waiting for anyone (Derek, Michael, Larry?) to come to terms with the privacy problems here. As Julie Cohen and Sonia Katyal have shown us, digital copyright and surveillance are intricately linked. What is Google doing to prevent anyone from snooping on our reading habits? Please read the Google privacy policy. I promise it will send chills up your spine. Check out the part about law enforcement. Then go ask your librarian if he would go to jail to protect your confidentiality. I know many librarians who would. Google: promises to turn you over to the Feds. Libraries: promise to do everything they can to protect you from the Feds. You decide who you trust.

So to review: a Google win (unlikely as it is) would choke off competition. A Google loss would choke off competition. And we are unlikely to get the really cool public library text-search index we deserve in any case.

This remains a good dream and a bad deal all around.