Books are the most traditional of all copyrightable works. Copyright as a legal institution was developed particularly for protecting authors and publishers of books. Over the years, copyrights have been granted to creators of all kinds of works, ranging from music over films to software. While most of these other types of copyrighted works are strongly affected by new forms of content production and distribution in the course of the so-called “digital revolution”, books seem to have been relatively immune to the very same technological changes – at least until Google started with the mass digitization of books and Amazon launched its increasingly popular e-book-reader “Kindle” (see “Google Books and the Kindle Controversy: Merging Conflict Arenas?“).

Especially Google Book Search (GBS) has inspired intense controversies between supporters, painting the highly optimistic picture of universal access to all books ever published for virtually everybody, and adversaries, fearing the rise of a knowledge monopolist, who exploits authors, publishers and readers alike. The best and most comprehensive comparison of both lines of argumentation I have encountered so far is a recent piece by Berkeley’s Pamela Samuelson titled “Google Book Search and the Future of Books in Cyberspace” (PDF).

After identifying overly restrictive copyright as the major impediment for any mass digitization project, Samuelson turns to the pros and cons of the GBS settlement in its current, amended version. As optimistic predictions she lists the following:

  • The settlement would allow young students in rural areas or inner cities too go to public libraries and have access to millions of books at the free public access terminal Google promises to provide to these libraries.
  • GBS will enable access for print-disabled persons.
  • Out-of-print books would be able to attract new readers and thereby breathe new commercial life into these works in at least three ways: First, Google will serve ads to users whose queries yield GBS results, and authors or other rights holders will share in the fruits of the ad revenues. Second, Google will sell institutional subscriptions to universities and other entities. Third, Google will provide a server based platform where users buy and store digital books in online personal libraries accessible from any Internet connected device. Revenues from consumer purchases, institutional subscriptions, and ads will be split, 37 percent to Google and 63 percent to a new collecting society named Book Rights Registry (BRR).
  • As an open platform, this system would allow purchasing digital books from any bookstore and reading them on any device, thereby overcoming restrictions of proprietary devices such as Amazon’s Kindle.
  • Access to the complete GBS corpus via terminals or institutional subscriptions could lead to an equalization of higher education institutions, as it would enable small, medium, and even large size but resource-challenged colleges and universities to expand their collections to include millions of books from major research university collections.
  • Especially from the perspective of the US Authors Guild, the creation of the new collecting society BRR would provide a new avenue for revenues not only by Google but by licenses granted to other firms as well.
  • The GBS settlement would help to solve the “orphan works” problem for books, i.e. access to books whose rights holders are difficult or impossible to find.
  • The GBS settlement would allow “nondisplay” uses of books in the corpus that would enable Google to develop improved search or translation tools. Besides, nonprofit researchers could engage in “nonconsumptive” research on it.
  • The GBS would be a breakthrough not only in speed of access but also in the breadth and location of access for any one could read these books from any Internet-connected place.

Hardly any of these points, however, is undisputed or without risks. Criticism and concerns come from different angles – publishers, authors, libraries, and readers – and include following:

  • Publishers fear the “Napsterization” of commercially valuable books in case the GBS would be “hacked” and all of the books therein, including the in-print books which are not abailable for display uses could be “liberated” by the hackers. Even more, attractive online book service providers such as the GBS could invite authors to cut out publishers as the traditional middle-man – especially, as they are already being asked to perform the bulk of copy-editing, formatting, and other tasks of book preparation anyway.
  • Some publishers criticize the suggested price setting procedures, fearing too low digital prices. As planned, Google would set prices for institutional subscriptions to out-of-print books in the corpus in consultation with the BRR, while prices for consumer purchases would be set through an algorithm designed to optimize the market returns for each books, although rights holders remain free to set their own prices for each book.
  • Similarly some professional authors worry that they will not be adequately compensated for Google’s commercial use of their books insofar Google keeps prices of GBS institutional subscriptions low.
  • While some publishers and professional authors are concerned prices could be too low, library associations and academic authors share the oppositional concern that approval of the settlement could, over time, lead to price gouging for institutional subscriptions. In addition to the power derived from the de facto monopoly that the settlement would confer on Google, supercompetitive prices could also result from the consultation with the BRR, whose mission is to represent rights holders who will almost certainly press for higher prices. Samuelson even speaks of a potential “nirvana” for publishers with new opportunities to obtain monopoly rents from out-of-print books through revenue maximizing pricing in collaboration with Google. Such price hikes, however, would substantially limit the GBS equalizing consequences.
  • Among higher education institutions, early resource-rich partners of Google such as the University of Michigan, which will get its subscription for free for twenty-five years for allowing the scanning of its books, could end up being subsidized by premium subscription prices of book-poor and late-to-partner institutions. This, of course, would turn the equalization promise on its head.
  • Users of the public access terminals at higher education and public libraries will be charged a fee for every page of every GBS book that patrons print out, and this fee will go to the BRR. While photocopying the same pages from a book taken off a library bookshelf would have been free as fair use in the US or as a private copy in Europe, this could be treated as a “precedent” by publishers for charging libraries per-page-copying fees more generally. (Here, I would even go beyond Samuelson’s point and follow Lawrence Lessig, who fears that this could even be the outset for creativity impeding pay-per-usage models for any copyrighted work.)
  • As GBS e-books will only be available online, readers are not able to lend their books to friends, resell their books or make private copies – all these are free uses of traditional books and at least of some other e-book formats.
  • Similarly to libraries, consumers also run the risk of paying monopoly prices, as Google intends to sell out-of-print e-books at an average price of $8.65; a rather high price given that in-print e-books are currently selling for $9.99 and sometimes less and are not bound to Internet access and server availability as in the GBS model.
  • Google’s unqualified right to sell the corpus to anyone without getting consent from BRR or anyone else as well as Google’s technological monopoly raise doubts across stakeholder groups with regard to quality and sustainability of GBS. Even more, Google can exclude books from GBS for editorial reasons, creating a risk of censorship. This risk is particularly salient as GBS searches cannot be conducted on removed books, even for purposes of letting a prospective reader know at which library the removed book can be found; Google is not planning to make a list of removed books available for public inspection and it need not say which books were left out.
  • For readers, inadequate guarantees of privacy protections could have a chilling effect on the willingness of users to read controversial materials, and consequently, may diminish the ability of authors of controversial books to earn money from them.
  • As only non-profit researchers are eligible to engage in research on the GBS corpus, the settlement will preclude them from becoming next-generation entrepreneurs capable of developing radically new information services arising from their non-consumptive uses of the GBS corpus. Moreover, GBS as a platform technology will probably be integrated with other Google products and services, making them more “sticky” with users.
  • Some concerns deal with question whether a class action procedure is the appropriate way of balancing the many public interests at stake and whether the settlement could release Google from acts of infringement in which it has not yet engaged such as selling institutional subscriptions to out-of-print books.

Summing up her comparison, Samuelson arrives at the following conclusion (p. 44):

“This Article has shown that although there are some reasons to be optimistic about the future of books in cyberspace if the GBS settlement is approved, there are even more reasons to be worried about the settlement and its consequences for competition and innovation down the line, as well as for sustained public access to knowledge, and to doubt that the bright promise proclaimed by GBS proponents is likely to be achieved.”

For Samuelson, excessive pricing, the lack of a backup plan if Google decides to discontinue GBS, and inadequate privacy protections are of particular concern, while there are presently too few checks and balances in the settlement agreement to protect the public’s strong interests in this corpus of books. She nevertheless admits that “a pragmatic argument can be made in favor of the settlement, for it would ‘cut the Gordian knot’ of very high transaction costs that would inhibit clearing rights necessary to digitize millions of out-of-print books and make them available for institutional subscriptions and consumer purchases.”

From a European perspective, at least two points can be added: First, in the amended GBS settlement foreign rights holders – with the exception of the UK, Canada and Australia – are excluded from the settling class, restricting any opportunities and advantages of GBS effectively to English works and English speaking recipients. This language bias is already a concern for the European Commission, which sees major disadvantages for education and research in Europe (see guardian). Second and related to this concern, approval of the settlement would create enormous pressure on European authorities and rights holders to find solutions for problems related to orphan works and digital availability of out-of-print books.

Regarding Samuelson’s dismissive conclusions – “especially over the long run” (p. 34) –, I would be more cautious: On the one hand, some of the most important points of criticism are contradictory: Either will there be the problem of too low – from publisher’s and professional author’s perspective – or of too high prices – from reader’s and libraries’ perspective – but hardly can there be both at the same time. On the other hand, and here particularly in the long run, outcomes depend on the resolution of these conflicts of interests and related collective action processes, which are very difficult if not impossible to predict. In this context, having Google as a single powerful and visible player can be both problematic and beneficial for different groups of stakeholders: While Google as a monopolist may misuse its market power, it may at the same time function as a highly visible target, inspiring regulatory efforts and competition by other initiatives such as the “Open Book Alliance” of Microsoft, Amazon and Yahoo.