Tuesday, April 7, 2009

Google Book settlement

Normally I am deeply long the slashdot paranoia trade, but lately I've been frustrated by the dependably knee-jerk response to the Google book settlement. There's an unholy alliance of publishers (brought to you by the same Author's Guild who think blind people shouldn't be able to read) and Google monopoly scaremongers (yes, they are taking over the world, unless Dick Cheney gets there first). Now, I'm the first one to get vexed about monopolies, especially ones granted by our dubious judicial system. However, I find comments like this misguided:

Any competitor that wants to get the same legal immunity Google is getting will have to take the same steps Google did: start scanning books without the publishers' and authors' permission, get sued by authors and publishers as a class, and then negotiate a settlement. The problem is that they'll have no guarantee that the authors and publishers will play along. The authors and publishers may like the cozy cartel they've created, and so they may have no particular interest in organizing themselves into a class for the benefit of the new entrant. Moreover, because Google has established the precedent that "search rights" are something that need to be paid for, it's going to be that much harder for competitors to make the (correct, in my view) argument that indexing books is fair use.

Well, so, yeah. In a perfect world, we would reform a lot of intellectual property law, and indexing books would be as fair use as indexing websites. But notice that it wasn't really clear that indexing websites was fair use when it got started either. So the argument made here would apply equally to Google's web search. Google stuck it's neck out. The new book search settlement doesn't grant Google any more exlusivity over scanning books for commercial purposes than it gives them over scanning websites. It's true that the settlement does establish the precedent that search rights for books need to be paid for, which I do agree is silly, and which is different from the way it has panned out on the web. This is simply because there's no web author's guild funded by big publishers that has the resources and threatened business model that would have led to lawsuits. But it does not prevent anyone from competing with Google on a level playing field, and, indeed, with substantially less uncertainty than Google faced when they started -- there is already at least a precedent, even if you would still have to negotiate a settlement.

So I think the settlement is great. It doesn't seem like much of a critique to me to say that in practice nobody could duplicate this result due to a confluence of circumstances. The same could be said for Google search in general. It's absolutely true, but it misses the forest for the trees. The problem is that the index wouldn't exist at all if this settlement was not reached. I think book search will be incredibly valuable to me on a personal level, and I'm glad it's going to exist. I know that somehow I am going to pay for that value. The way to pay the least for that value is to allow for competition between those interested in providing it. This is exactly what the settlement does at the level of the index provider.

Don't blame Google for a bad settlement. They are extracting value from new a service they are providing in full competition. Blame the cold dead hand of the publishers who are attempting to extract value from the already existing production of missing authors. These are two totally different types of monopoly -- one that encourages novel future production and one that tries to fence off an exisintg plot and extract the maximum rent for it.

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