James Somers wrote an article for the Atlantic titled Torching the Modern-Day Library of Alexandria (April 20, 2017).

« “Somewhere at Google there is a database containing 25 million books and nobody is allowed to read them.” »

« Google’s secret effort to scan every book in the world, codenamed “Project Ocean,” began in earnest in 2002.  »

« By 2004, Google had started scanning. In just over a decade, after making deals with Michigan, Harvard, Stanford, Oxford, the New York Public Library, and dozens of other library systems, the company, outpacing Page’s prediction, had scanned about 25 million books. It cost them an estimated $400 million. It was a feat not just of technology but of logistics. »

« When Google started scanning, they weren’t actually setting out to build a digital library where you could read books in their entirety; that idea would come later. Their original goal was just to let you search books. For books in copyright, all they would show you were “snippets,” just a few sentences of context around your search terms. They likened their service to a card catalog. »

« Google thought that creating a card catalog was protected by “fair use,” the same doctrine of copyright law that lets a scholar excerpt someone’s else’s work in order to talk about it. »

« An advocacy group called the Authors Guild, and several book authors, filed a class action lawsuit against Google on behalf of everyone with a U.S. copyright interest in a book. (A group of publishers filed their own lawsuit but joined the Authors Guild class action shortly thereafter.) »

« There’s actually a long tradition of technology companies disregarding intellectual-property rights as they invent new ways to distribute content. In the early 1900s, makers of the “piano rolls” that control player pianos ignored copyrights in sheet music and were sued by music publishers. The same thing happened with makers of vinyl records and early purveyors of commercial radio. In the 60s, cable operators re-aired broadcast TV signals without first getting permission and found themselves in costly litigation. Movie studios sued VCR makers. Music labels sued KazaA and Napster. »

« As Tim Wu pointed out in a 2003 law review article, what usually becomes of these battles—what happened with piano rolls, with records, with radio, and with cable—isn’t that copyright holders squash the new technology. Instead, they cut a deal and start making money from it. Often this takes the form of a “compulsory license” in which, for example, musicians are required to license their work to the piano-roll maker, but in exchange, the piano-roll maker has to pay a fixed fee, say two cents per song, for every roll they produce. Musicians get a new stream of income, and the public gets to hear their favorite songs on the player piano. “History has shown that time and market forces often provide equilibrium in balancing interests,” Wu writes. »

 « “There was an opportunity to do something extraordinary for readers and academics in this country.” »

« Google Books could turn out to be for out-of-print books what the VCR had been for movies out of the theater. »

« If that was true, you wouldn’t actually want to stop Google from scanning out-of-print books—you’d want to encourage it. In fact, you’d want them to go beyond just showing snippets to actually selling those books as digital downloads. Out-of-print books, almost by definition, were commercial dead weight. If Google, through mass digitization, could make a new market for them, that would be a real victory for authors and publishers. »

« The plaintiffs, in other words, had gotten themselves into a pretty unusual situation. They didn’t want to lose their own lawsuit—but they didn’t want to win it either. »

« It’s been estimated that about half the books published between 1923 and 1963 are actually in the public domain—it’s just that no one knows which half. Copyrights back then had to be renewed, and often the rightsholder wouldn’t bother filing the paperwork; if they did, the paperwork could be lost. The cost of figuring out who owns the rights to a given book can end up being greater than the market value of the book itself. »

« What became known as the Google Books Search Amended Settlement Agreement came to 165 pages and more than a dozen appendices. It took two and a half years to hammer out the details. Sarnoff described the negotiations as “four-dimensional chess” between the authors, publishers, libraries, and Google. “Everyone involved,” he said to me, “and I mean everyone—on all sides of this issue—thought that if we were going to get this through, this would be the single most important thing they did in their careers.” Ultimately the deal put Google on the hook for about $125 million, including a one-time $45 million payout to the copyright holders of books it had scanned—something like $60 per book—along with $15.5 million in legal fees to the publishers, $30 million to the authors, and $34.5 million toward creating the Registry. »

« Sorting out the details had taken years of litigation and then years of negotiation, but now, in 2011, there was a plan—a plan that seemed to work equally well for everyone at the table. As Samuelson, the Berkeley law professor, put it in a paper at the time, “The proposed settlement thus looked like a win-win-win: the libraries would get access to millions of books, Google would be able to recoup its investment in GBS, and authors and publishers would get a new revenue stream from books that had been yielding zero returns. And legislation would be unnecessary to bring about this result.” »

« Amazon, for its part, worried that the settlement allowed Google to set up a bookstore that no one else could. Anyone else who wanted to sell out-of-print books, they argued, would have to clear rights on a book-by-book basis, which was as good as impossible, whereas the class action agreement gave Google a license to all of the books at once. »

This objection got the attention of the Justice Department, in particular the Antitrust division, who began investigating the settlement. »

« Google’s best defense was that the whole point of antitrust law was to protect consumers… A person closely involved in the settlement said to me, “Each of the publishers would go into the Antitrust Division and say well but look, Amazon has 80 percent of the e-book market. Google has 0 percent or 1 percent. This is allowing someone else to compete in the digital books space against Amazon. And so you should be regarding this as pro-competitive, not anti-competitive. Which seemed also very sensible to me. But it was like they were talking to a brick wall. And that reaction was shameful.” »

« The DOJ held fast. »

 « “This is not important enough for the Congress to somehow adjust copyright law,” Clancy said. “It’s not going to get anyone elected. It’s not going to create a whole bunch of jobs.” »

« “If you want to look at this in a raw way,” Allan Adler, in-house counsel for the publishers, said to me, “a deep pocketed, private corporate actor was going to foot the bill for something that everyone wanted to see.” Google poured resources into the project, not just to scan the books but to dig up and digitize old copyright records, to negotiate with authors and publishers, to foot the bill for a Books Rights Registry. Years later, the Copyright Office has gotten nowhere with a proposal that re-treads much the same ground, but whose every component would have to be funded with Congressional appropriations. »

« The first copyright statute in the United States, passed in 1790, was called An Act for the Encouragement of Learning. Copyright terms were to last fourteen years, with the option to renew for another fourteen, but only if the author was alive at the end of the first term… Authors would get a limited monopoly on their work so they could make a living from it; but their work would retire quickly into the public domain. »

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