Google, partners should persevere

In 2004, Google publicized plans to work with universities and public libraries in an attempt to create the world’s largest digital book and journal archive. The project, which eventually came to be known as Google Books, grew at some point into an endeavor to, in the company’s words, “democratize knowledge” by digitizing every unique book on the planet—all 129,864,880 of them, according to the company’s own calculations.

Since its inception, however, the undertaking has been met with impassioned resistance and criticism. Literary types and publishers alike have decried the project as everything from “massive copyright infringement” to the slightly more hyperbolic “theft,” and by the fall of 2005 two separate lawsuits had been filed in the U.S. By 2009, Google had been sued for copyright infringement in France and China as well.

Despite these roadblocks, Google continued to expand the project, adding to its list of partners to make 21 total, nine of which are based overseas. In October, the company announced that it had scanned over 15 million books, with plans to continue rapidly building its collection.

Unfortunately, Google cannot yet be certain that such a goal will be allowed to come to fruition. A federal ruling handed down last Tuesday has sent them back to the drawing board, deeming the company’s proposed agreement with the Authors Guild and the Association of American Publishers unfair, inadequate and unreasonable. The agreement, which stems from the settlement of the 2005 lawsuits and would be worth $125 million, apparently grants Google too much of a monopoly over the digitization of “orphan works.”

Orphans are out-of-print books still subject to copyright laws, but whose author or copyright owner is either unknown or cannot be located. Because rightful copyright ownership cannot be established, even libraries and artists may stay away from making orphans available for public consumption in any way, for fear of future reproach by the unknown copyright owner. For that reason, companies like Amazon and Microsoft are also contesting Google’s claim to orphan work digitization: Were Google to somehow legally take control of orphans, it would be essentially the only entity in the world with the power to do so, and thus could conceivably drive prices through the roof.

The logic behind such an argument is sound, and any intellectual will cringe at the thought of some Orwellian monopolization over information. To fear Google Books as a stranglehold play on the orphan work market, however, is to overlook a crucial distinction concerning the definition of those works, which is that they have gone out of print before their copyright has even expired.

In many cases, orphans are obscure works that hold little value to most people—that’s why they went out of print. Were they profitable, they would be renewed, which is exactly the point: No wise company would look toward orphan works for exorbitant profits. The main audience that orphans have is the intellectual community, comprised mostly of academics and university students who can access the books by walking across the quad and checking out physical copies from the library. Orphans can oftentimes be invaluable to researchers and certainly should be preserved, but digitizing them serves as little more than a convenience to their limited audience. As such, no one would pay more than a minor fee to view online what they could find elsewhere for free.

Of course, it’s not so much the specifics that matter in arguments such as these. It just so happens that orphan works could never make a viable monopoly, but it’s certainly conceivable that a similar situation could arise in a more highly profitable arena. Thus, theoretically, the same standard must be applied to both situations in order to reaffirm an equitable process of evaluation.