RE: Darnton on the Google settlement

[richards1000@comcast.net]

Here are my comments on Dr. Darnton's article:

I disagree with his statement that "[l]ibraries exist to promote 
a public good." A review of the mission statements and activities 
of a wide range of libraries in the U.S. shows that the reason 
for a library's existence varies among library types. While 
stand-alone public libraries exist to promote public goods (e.g., 
leisure reading, lifelong learning, the dissemination of a 
variety of points of view on social issues, etc.), any library 
that serves a parent institution exists primarily to serve the 
information needs of that parent institution, which often will be 
inconsistent with any public good. For example, a university 
library in the United States exists to serve the information 
needs of the faculty, staff, and students of that university.

I also disagree with his characterization of information under 
copyright. Referring to information contained in printed books 
that are subject to copyright, Dr. Darnton writes that permitting 
commercial firms like Google to digitize those books would 
constitute "the commercialization of the content of our 
libraries" and the "privatizing [of] knowledge that belongs in 
the public sphere." First, published content that is subject to 
copyright and that has been purchased by libraries has already 
been "commercialized." The U.S. Government's unambiguous public 
policy is to allow authors to commercialize their writings. Our 
copyright law expressly gives authors property rights in their 
original expression, and enables them to exploit that property 
for monetary gain in many ways. See, e.g., Section 201(d) of the 
Copyright Act of 1976, stating that copyright rights under U.S. 
law are completely divisible and transferable as personal 
property, and can even be used as security for credit; see also 
the discussion of this provision in the House Report, H.R. Report 
No. 94-1476, at 123, available at 
http://en.wikisource.org/wiki/Page:H.R._Rep._No._94-1476_(1976)_Page_123.djvu 
. This system of property rights works by permitting authors to 
restrict, for limited times, the dissemination of the expressions 
of information they create, so that the authors may try to 
generate revenue from those expressions. That is, favoring 
commercial restrictions on access to original writings is an 
express public policy choice of Congress.

Third, I think these statements err by conflating knowledge and 
information, and seem inconsistent with our copyright policy. 
Copyright law governs only the expression of ideas, not the ideas 
themselves, nor the knowledge that can be synthesized from those 
ideas. U.S. copyright law permits the commercial exploitation of 
original expression, but not the commercial exploitation of ideas 
or knowledge (though U.S. patent law and trade secret law do 
permit the commercial exploitation of ideas, under certain 
circumstances). Allowing authors to profit from their writings 
does not entail the commercial exploitation of the ideas in those 
writings, or the knowledge that may be derived from such ideas. 
Nor does it necessarily limit the dissemination of those ideas. 
Ideas contained in copyrighted works are free to be thought 
about, discussed, debated, and even retransmitted using new, 
original expression, which itself may be commercially exploited 
by its author. The theory of U.S. copyright policy is that a 
combination of granting property rights in original expression 
(to enable authors to recoup their up-front investment in 
research), preserving a public domain of noncopyrighted works, 
and prohibiting commercial exploitation of ideas, creates 
incentives for authors to create new, original expression, and 
thereby fosters the dissemination of ideas.

Fourth, I disagree with Dr. Darnton's characterization of the 
consequences of the settlement. Google already has competitors in 
the market for in-copyright and out-of-print books, firms such as 
netLibrary and ebrary, though at present those competitors' 
holdings do not go back as far as Google's. I agree with Dr. 
Darnton that for now, Google has little or no competition in the 
market for digitized in-copyright and out-of-print books 
published before the 1990s, but I think that situation is 
temporary. As I read the settlement agreement, nothing prevents 
the copyright owners from using the Book Rights Registry as a 
rights organization to negotiate with competitors to Google in 
the digitization market. By creating a single rights organization 
to lower transaction costs for licensing mass digitization 
projects, the settlement thus lowers barriers to entry into the 
market for digitizing in-copyright and out-of-print materials. 
The settlement thus increases the likelihood that competitors to 
Google will digitize older in-copyright and out-of-print books 
and offer libraries choices of vendors for digital copies of 
those books. If Google sets its prices too high, this too will 
encourage competitors to enter the market. Nor are libraries 
powerless in the face of Google. If libraries find Google's 
prices too high, libraries are free to reject them (and rely on 
competitors' digital versions or the libraries' own print 
versions, whether in-house or via interlibrary loan), or to use 
consortia to bargain for lower prices, as libraries do with 
countless other vendors of copyrighted digital works. While the 
rights owners certainly have the power to set the price floor in 
that market, we've made a public policy choice through the 
copyright law to give them that power.

Perhaps a good part of the controversy over the Google settlement 
stems from dissatisfaction either with the absence in U.S. 
copyright law of a first sale doctrine respecting digital copies 
of copyrighted works -- widespread unauthorized copying of 
digital copyrighted works may indicate public adoption of a de 
facto digital first sale rule -- or with the present U.S. 
copyright policy in favor of commercial exploitation of original 
writings. What constitutes property is ultimately based on 
consensus, and perhaps most U.S. voters, after living for several 
years in the digital environment, have changed their minds 
respecting whether authors should be permitted to acquire 
exclusive property rights in original expression. If these policy 
issues are the true basis of the Google book controversy, then 
complaints should be directed to Congress, not to Google or 
Google's library partners.

The preceding message is not offered as legal advice, and does 
not in fact constitute legal advice.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Robert C. Richards, Jr., J.D.*, M.S.L.I.S., M.A.
Philadelphia, PA
richards1000@comcast.net
* Member New York bar, retired status.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~