Walt Crawford should read the document

In his March, 2009 Cites & Insites, Walt Crawford does a roundup of comments on the Google/AAP settlement, and gets very agitated when reviewing some of my posts. I'm used to that. But agitation tends to cancel out reason, and Walt gets some things wrong that he might have understood better if he had kept a clear head.

In response to my criticism that Google is digitizing without regard to collection building, Walt says:

"I don’t know of any big academic library or public library that’s a single disciplinary collection—or, realistically, a set of well-curated collections. "

I'd like to hear from academic librarians on this one. My understanding was that an academic library is INDEED a set of well-curated collections.

Walt:

"I don’t remember public universities admitting to substantial costs in cooperating with Google."

What's the cost? Dan Greenstein estimated $1-2 per book. Cheap, but still considerable for a library scanning millions of books. The cost is primarily in staff time, shelving and reshelving books. Under this agreement, there is also the cost of meeting the security requirements that are imposed. (That's in Appendix D) These requirements, which are possibly quite reasonable, will have a greater cost than what most libraries do today for digital materials, and will be one of the primary reasons why some libraries do not contract to receive copies of the digitized items. (Note that some of the potential library partners are working hard to collaborate on the Hathi Trust, which does appear to meet the standards of the agreement; others, however, have decided that they will not attempt to store digital copies.)

In a post I argued that had libraries gone ahead and digitized their own collections (for the purposes of indexing and searching), that this probably would have been considered fair use.

Walt:

"Well…this is not a judicial finding. I find it unfortunate that Google didn’t fight the good fight, and I think it will make things much harder for another commercial entity to attempt similar digitization and use—but I don’t see that library use of “their own materials” has changed in any way."

Not of their hard copy materials, but legal minds think that this changes the landscape for digitization and the use of digitized materials, even closing some options that might have been available before.

"The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world. It and BRR, which will also be a monopoly, will have considerable freedom to set prices and terms and conditions for Book Search’s commercial services.... If asked, the authors of orphan books in major research libraries might well prefer for their books to be available under Creative Commons licenses or put in the public domain so that fellow researchers could have greater access to them. The BRR will have an institutional bias against encouraging this or considering what terms of access most authors of books in the corpus would want." Pam Samuelson

And to my statement:

"The digitization of books by Google is a massive project that will result in the privatization of a public good: the contents of libraries. While the libraries will still be there, Google will have a de facto monopoly on the online version of their contents."

Walt first prefaces it with:

"I take issue with the very first sentence, as I’ve taken issue consistently with the same claim by others with even higher profiles than Coyle (who are even less likely to ever admit they could be mistaken)."

Well, it would have been nice if he had said who they are. But thanks for letting me know that you consider me a "lower profile" person, Walt. He goes on to say:

"Nonsense. Sheer, utter nonsense. The libraries and contents will still be there. OCA will still be there. I’m sorry, but this one just drives me nuts: It’s demonization of the worst kind and an abuse of the language."

Well, I'm not sure how this abuses language, but there is general agreement that Google gets a monopoly... at least on out-of-print books, which is the vast majority of books in libraries. (Not on public domain books, which is what the OCA digitizes, but anyone can digitize public domain books.) So although the libraries and their contents will still be there, and can be used in hard copy as they are today, no one but Google can digitize the in-copyright works without incurring liability. So "monopoly on online version of their contents" is a factual statement, if you understand that public domain is public domain. (Note, this settlement agreement is extremely complex, with some real zingers hidden in its 134 pages. It's not possible to cover it all in a blog post, so anyone who is interested really needs to read the document itself, painful as that process is.)

In terms of preservation and longevity concerns, Walt asks:

"Won’t the fully-participating libraries have digital copies? I can’t think of institutions with better longevity."

To begin with, only fully participating libraries will have digital copies, and we don't yet know how many libraries will choose that option. Other libraries, even those that are only allowing Google to digitize public domain books, do not get to keep copies of the digital files. (Not only that, public domain libraries that have been cooperating with Google have to delete all of their copies of the files that they hold today, as per this agreement. See Appendix B-3.) The only party with copies of all of the files will be Google.

There are statements in the settlement about what happens if Google "fails to meet the Require Library Services Requirement" or simply decides not to continue. I refer you to page 84 of the settlement, and hope that someone can make sense out of it. The way I read it, libraries can then engage a third-party provider, who will receive the files from Google.

The key thing here is that even in the event of the failure of Google, libraries are not allowed to make uses of their own scans, such as those that are permitted to Google by this settlement. The restriction to "computational uses" and some other minor uses stands, even in that eventuality.

When I say:

"Google should be required to carry all digital Books without discrimination and without liability."

Walt replies:

"You mean “all digital books that Google’s scanned”? I suspect Google wouldn’t argue with this."

That is exactly what I mean, and Google does indeed argue with it. As a matter of fact, the settlement only obligates Google to provide access to at least 85% of the books it scans. That "access" refers to the subscription service that will be available to libraries and other institutions. The settlement says:

"Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons." p.36

That's followed by an affirmation of the "value of the principle of freedom of expression," which I must say rings a bit hollow in this context. Google has to notify the Registry if it has excluded a book, and to provide a digital copy of that book to the Registry. The Registry can then seek out a third party to provide services for excluded books. Here, however, is James Grimmelmann's concern on that front:

"The second is that no one besides the Registry might ever find out that Google has chosen to de-list a book. If the Registry doesn’t or can’t engage a replacement for Google, the book would genuinely vanish from this new Library of Alexandria. Perhaps that should happen for some books, but decisions like that shouldn’t be made in secret. When Google choses to exclude a book for editorial reasons, it should be [R13] required to inform the copyright owner and the general public, not just the Registry. "

What might Google exclude? Perhaps very little, but at the ALA panel in Denver in January, 2009, Dan Clancy of Google gave an off-the-cuff remark that, as I recall, had the word "pornography" in it. Given the recent embarassment of Amazon when it had to face the fact that many of its best sellers are rather salacious in nature, I can imagine Google also developing concern about the visibility of the texts that make us uncomfortable.

There are a lot of legitimate reasons for concern about this proposed settlement. And I don't think that anything that I have said is "nonsense."