Google Library

I have read and listened to a lot of dialogue about the Google settlement. I’m not a lawyer and I’m not a librarian or archivist and I’m not a scholar who would be interested in those “non-consumptive uses” I didn’t know about before this all happened. To the extent that I had a horse in the race, it was about liberating orphan books. I worked with a current executive who was inside a different big company 10 years ago. We were analyzing the whole world of out of print and the opportunities therein. We figured out pretty quickly that a lot of the good stuff we’d find would present devilish problems trying to locate somebody to pay royalties to, and determining definitively that something post-1923 was not under copyright was not an airtight propositon either. 

A few years ago, at the Frankfurt Book Fair before the Google Library project was announced, Michael Holdsworth, then at Cambridge University Press, related an observation from somebody he’d talked to who said “when we come back 30 or 50 years from now, most of the IP from the 20th century will have vanished. We’ll reach a point where if Google doesn’t report it, it doesn’t exist. Everything from before 1923 will have been scanned by somebody and everything post 2000 was born digital. Just about everything in between will be missing.”

That was very fresh in my mind when Google began to scan all those orphan works, breaking a logjam (one way or another; it now appears by this settlement) that the Congress had not resolved. In fact, legislation since the 1970s extending terms of copyright had actually made the problem worse. Under the laws I grew up under, I believe anything older than 56 years would have been in the public domain. That law today would liberate anything born before 1953. I would personally be out of copyright.

As a responsible member of the community, and a consultant who wants to help clients think through the implications of change, of course the Google settlement becomes a tennis tournament where I have to attend every match.

The part that interests me most is the potential revenue beyond the settlement. Where is the revenue for this going to come from? Who will buy what from the material Google has digitized and what will the revenue opportunities really be for those who “opt in”? And what will Google really have to sell?

I went to Michael Cairns, former CEO of Bowker with this question and he and I are starting to think it through.

All the focus on revenues in the conversations I’ve heard, including a very stimulating seminar at Columbia ten days ago, has been about digital revenue. And that’s what Cairns and I were thinking about too. What, besides the pre-1923 PD stuff do they have in the databases they can license to libraries? So how much can they charge? We saw Google’s pricing idea for ebooks. What will copyright owners do about pricing? And will copyright owners give Google books under this program, or under the Google Partnership Program? These are complicated questions.

Distracting, even.

Because that’s not where the money is. (This next part is purely a hunch; we haven’t done any numbers yet.)

Let’s remember that 99% of the consumer book business is still in print.

Think about how many orphan books would be worth a printing of 5000 copies or more. Start with this as a list from which to find probable candidates:

Any book that was made into a significant Hollywood movie.

Any book about FDR, Babe Ruth, Dwight Eisenhower, John Kennedy, Winston Churchill, etc.

Books about movie stars, TV stars, TV shows, pop musicians.

The number 1 fiction or non-fiction bestseller of any year (this could be a set used as birthday presents for special birthdays: 60, 65, 70, etc.)

My hunch is that the biggest revenue generator across the entire load of copyrights that the settlement will liberate for at least the next ten years will be books printed in press-run quantities. Who ever thought that the biggest beneficiaries of the Google settlement in the medium term could be agents and packagers? If somebody has previously mentioned the possibility, I hadn’t noticed. It only occurred to me day before yesterday.

Cairns reminds me that our friend (and fellow Michael) Cader thinks that the chances of any real “gems” being found in this orphan pile are remote. Of course, things that are remote possibilities happen from time to time over enough occurrences, and there will be a lot of books liberated. Surely there are many, in the categories mentioned above and others, that will warrant a first printing of  3,000 or 5,000 or 10,000, or with the right packaging and promotion, even more than that. Even in these troubled times, there might be some additions to staff at packagers or publishers to sift through these opportunities. Assuming these deals are to be made by the Book Rights Registry, let’s hope they have an agent on the staff along with the database sales manager.

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Some of the recent conversation about ebook fair use sparked by the Kindle-and-audio incident made me recall that Joe Esposito and I had written about this problem in Publishers Weekly more than two years ago.

We had a different catalyst for our thinking; at the time, we were wondering what the rules should be for libraries (or anybody else) to make, possess, or use a digital copy of a work they had acquired in print. The subject of concern then was the Google Library program: the partnership between some major research institutions and Google that delivered content (some of it in copyright) to Google to scan in return for digital copies for the libraries to keep. 

At the time, Joe and I observed that Google and the libraries had no direction from the copyright owners about what digital rights came conveyed when they bought a physical copy because no publisher was making any clear statement of what they believed they sold in the transaction.

Since then, the ACAP project actually tried to develop a standard for communicating rights like this electronically, mostly on behalf of the newspaper industry, not book publishers. The standard for communication is, of course, a separate problem from determining what rights can legitimately or sensibly be asserted. And the newspaper problem is perhaps more complex. With newspapers, much of the value being purveyed is closely linked to timeliness. Forty years ago, The Rolling Stones sang “who wants yesterday’s papers? Nobody in the world”. They wouldn’t have said that about “yesterday’s books.”

What concerned publishers was the possibility that a Google scan could end up on a library server and be shared with a whole campus, network of campuses, a state, or even the entire public. Even imagination-challenged publishers could envision a day when one sold copy could satisfy a large network of demand now purchasing hundreds or even thousands of copies. What concerned Esposito and me was that publishers weren’t taking charge of their destiny. They were being made uncomfortable by what they saw as erosion of their rights, but they weren’t making any explicit statement about what they believed their rights to be.

I hope Yogi will consider it fair use to say that the Kindle-and-audio flap is deja vu all over again. The Authors Guild, with no audible objections (pun appropriate if not intended) from publishers, complain that the application of TTS technology to a legitimately sold electronic text constitutes a rights violation. If that particular limitation on the license granted with an ebook ever occurred to an author or publisher before, I’m not aware of it.

In the digerati community, there is frustration with the GBS settlement because it short-circuited a legal test and definition of “fair use.” Of course, Google and the publishers and the authors are each operating in their own interests, not society’s (by their definition of society’s or the digerati’s, neither of which might be ours), and the settlement apparently satisfies their interests. But at least before the settlement, Google made its position of what constituted “fair use” clear, with policies about when they would use snippets versus when they’d show larger blocks of text. Publishers were never so transparent. If they want to be credible as they fight for their rights in the future, now is the time to think these questions through and stake out ground that makes sense to defend.

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