Infighting: The Tyranny of the Internet

In the interest of fostering a lively discussion on the issues progressives don’t always agree on, Campus Progress occasionally hosted debates in a feature we call Infighting. The purpose of these debates is to hash out what the progressive position on a contentious issue should be, morally and strategically.

This time, we chose an issue that has changed with new technology. Most of us know about Google’s book search engine. But few of us know about the story behind its development and current legal standing. Earlier this year, Google reached a private settlement that would give online access to millions of books for free to the user. But like any legal agreement, it’s not as simple as it sounds at first. We present the two sides of the debate.

The pro side, presented by Jake Stillwell of the United States Student Association, will be defending the Google Books settlement by saying increases access to education; the con side, presented by New York University professor James Grimmelmann, will be presenting some reasons progressives should be skeptical of Google’s market power.

Pro: Google Books removes barriers to education

Today, millions of books are accessible only to the privileged few that are accepted to—and can afford—elite universities like Stanford, Harvard, or Princeton. But in the near future, any student anywhere will have access to the books of the greatest libraries in the world. Technology has made it possible for this access to be, quite literally, at their fingertips.

About six years ago, Google began scanning books from libraries into their online search engine so that users could search through dusty old books just like they would the Web. A group of authors and publishers took Google to court in a class action lawsuit over copyright issues in 2005, and they finally reached a settlement agreement last year that would make books more widely accessible to the public. Now it is up to a federal judge to approve the agreement. But what the United States Student Association urges the federal judge to consider is that education is a right and the Google Books agreement helps make education accessible, regardless of the users’ socioeconomic background or identity.

The Google Books settlement helps with one of the biggest problems facing students and schools today: the skyrocketing cost of higher education. Increasing costs are due in large part to declining endowment values and state budget shortfalls. These crunches are forcing schools to cut spending on, among other things, their libraries. Meanwhile, on top of the staggering costs of tuition, the average student spends up to $1,100 each year on books and supplies. Books and supplies account for about 10 percent of two-year students’ budgets (but less for those at a four-year college or university), according to research by the College Board. This hurts economically disadvantaged students the most.

Google’s Book Search helps tear down the barriers that time, distance, and access can put in front of educational opportunities. Already users can search over 10 million books for free and use the service to find them in a library or a bookstore. They can also already read over 1.5 million out-of-copyright books in their entirety for free. But if the agreement is approved, any student—whether at Harvard, a rural community college, or a small liberal arts school—will be able to preview full pages from millions of books for free and purchase full online access to them for a small fee. Schools will be able to provide electronic access by purchasing subscriptions for their students and faculty, and the settlement is designed to ensure that this service is affordable. Universities, colleges, and public libraries can get a free license to provide full-text access at designated on-site computers in their facilities as well.

Along with helping to level the educational playing field, the agreement may have a transformative impact on research and scholarship across many disciplines. By default, all in-copyright, out-of-print books that Google digitizes will become accessible through these new access models of Book Search. Under the agreement, a student taking a history class will be able to quickly discover older works that might otherwise simply gather dust on a library’s shelf at a university across the country.

Digitization and online access can also help make books more affordable. After all, distributing an electronic version of a book is cheaper than shipping and stocking it in a store—once it is digitized it costs essentially nothing to reproduce. Google’s settlement is non-exclusive, so authors and publishers are free to forge agreements with other online digitization services.

More competition can help drive down costs, and the agreement makes it easier for other providers to develop competing digital book services. Today’s students are "digital natives," more used to searching the Web than they are the library’s stacks. This agreement will allow 21st century technology to unlock the centuries of knowledge and cultural history contained within books. I hope the court approves the settlement. For many students who await access to a broader base of knowledge, this new technology will make the dream of education a reality.

Con: Hold on. Google manipulated the legal system to get what it wanted

Progressives should be worried about the Google Book Search settlement, which may or may not be approved by a federal judge soon. That doesn’t mean they should necessarily oppose it—but rather that they should be concerned about its consequences. This isn’t a partisan political issue; there are also libertarian and conservative reasons to be worried. On the progressive side, though, the settlement raises serious issues about equality, fairness, and a participatory political process.

The settlement is extremely complex—141 pages plus 15 attachments—so I’ll only sketch its basics. Google gains the right to sell digital versions of every book ever published in the United States. It will sell individual e-books to consumers and a subscription service of the whole collection to libraries. In exchange, it pays authors and publishers $125 million up front and 63 percent of its ongoing sales revenue. Individual copyright owners can set the price their book sells at, or, if they want, take it out of the program altogether.

The first, overriding concern is that the settlement gives Google a huge competitive advantage. All other booksellers, even the mighty Amazon, are stuck negotiating individual permissions, the way they always have. Google’s settlement lets it advance directly to "Go" on the e-book Monopoly board. Market dominance is one thing when fairly won—as Google’s dominance in Web search has been—and another when achieved by manipulating the legal system.

The basis of Google’s privileged position will be the hundreds of thousands, possibly millions, of "orphan" books. These books are still under copyright, but no one knows how to find the copyright owners. You can’t get a license to reprint these books, since there’s no way to tell who you should get a license from. The settlement gives Google the right to start selling orphan books, but that door remains barred for everyone else. The only way for anyone to compete with Google’s comprehensive collection would be to start scanning, get sued, and miraculously emerge with the same settlement. Good luck with that.

Looking beyond the economics of the book industry, the settlement will deeply reshape our culture, by changing who gets access to books and how. Some of these changes are likely to be for the better: Google will connect every library to the digital equivalent of the greatest research library ever assembled. They call this the "Public Access Service," and it could even out inequalities between the informational haves at elite universities and the informational have-nots everywhere else.

At the same time, though, the settlement puts these libraries in a dangerous position of dependence on Google. The public library plays a critical democratic and cultural role in providing equitable access to information to all, free from government or corporate control. When a library signs up for the Google book service, however, it places itself in Google’s hands. Librarians have gone to bat to keep their members’ reading habits private; will Google do the same when the chips are down? Librarians have taken strong stances against censorship; the settlement explicitly reserves Google’s right to drop books from its collection for any reason at all. Librarians are committed to access for all; the settlement makes no enforceable promises that the service will be priced in a way that libraries in poorer communities will be able to afford.

The final problem is procedural. The settlement was negotiated in strict secrecy by a small group of lawyers, and then presented to the public as a fait accompli. That would be one thing if this were a purely private settlement between a few litigants, affecting only their own rights. It’s not, though. The original lawsuit was a class action, effectively behalf of everyone who’s every written or published a book. Other than the handful of authors and publishers who were directly represented, none of the millions of other plaintiffs was in on the negotiations. Neither was the public at large.

Of course, class actions are an important part of the legal system. Here, though, the class is being used not to carry out a lawsuit but to settle one. Google is using the class action to buy up everyone’s copyright interests at a judicially approved price. One of the settlement’s architects has admitted that the deal lies "at the edges of class action law."

But no matter how good the intention of its drafters, the settlement is an end-run around the democratic process. The settlement is effectively a big a change to our copyright system that would ordinarily be handled through legislation. Congress would normally consider and balance among the interests of all who are affected by it. Even if this particular settlement, on balance, offers important benefits to the public, it ultimately represents a potentially dangerous corruption of the legal system. Approving it as-is would send a signal to other industries that they could strike secret deals to enrich themselves and disregard the public interest, provided they laundered their schemes through the right kind of class action lawsuit. The public should have been involved in this deal from the start. It’s not too late to demand that we be involved in it now.

Jake Stillwell is the communications director for the United States Student Association. He graduated from Central Washington University this spring. James Grimmelmann is an associate professor at New York Law School, where he’s affiliated with the Institute for Information Law and Policy.

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