an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Beyond Competition: Preparing for a Google Book Search Monopoly
Like Robert Darnton, I look to the upcoming Google Book Search Settlement hearing with a mixture of wonder and trepidation. The prospect of constructing a digital library of Alexandria warms the heart of any scholar. But only the most naive optimist could ignore the perils of having one company, driven first and foremost by a profit motive, effectively in charge of the most comprehensive collection of the world's scientific and cultural heritage.
In 2007, I hoped that public interest groups could leverage copyright challenges to Google’s book search program to promote the public interest. Courts could condition a pro-Google fair use finding on universal access to the contents of the resulting database. Landmark cases like Sony v. Universal have set a precedent for taking such broad public interests into account in the course of copyright litigation.
Those who opt out of the settlement may be able to fight for such concessions, but for now the main event is possible challenges to the settlement itself. James Grimmelmann has suggested several principles and recommendations to guide the court, focusing primarily on antitrust issues. He's summarized the ideas at Talking Points Memo, a political blog that deserves credit for addressing tech policy:
The antitrust danger here is that the settlement puts Google in a highly privileged position for book search and book sales. Do you want to sell e-books of scanned out-of-print books the way Google will? Good luck with that; I hope you’ve put aside a lot of money for lawyers. The authors and publishers settled voluntarily with Google, but there’s no guarantee they’ll offer similar terms, or any terms at all, to anyone else. Google also gets some excellent deals with the new Book Rights Registry the settlement sets up to process payments to copyright owners. The Registry is empowered to negotiate on behalf of all authors and publishers, and it could unilaterally decide only to talk to Google.
Grimmelmann's ideas are powerful, and well adapted to a policy consensus that presumes competition is the ideal solution to abuses of power online. He wants to assure the settlement leaves open ample opportunities for new entrants to offer a universal or niche book search service. However, what happens if we start losing our faith in the likelihood of competition? What should inform our response to Google Book Search then?
Oren Bracha and I have identified many reasons why competition is unlikely in the general purpose search market; two are particularly relevant to book searches. Licensing costs are likely to be a substantial barrier to entry. A key to competition in the search market is having a comprehensive database of searchable materials; the more these need to be licensed, the less likely it is that a second comer can set up its own book archive. Moreover, innovation in search is heavily dependent on having an installed base of users that effectively "train" the search engine to be responsive. The more search queries an engine gets, the better able it is to sharpen and perfect its algorithm. Each additional user decreases the cost of a better quality service for all subsequent users. Thus, incumbents with large numbers of users enjoy substantial advantages over smaller entrants.
I do not foresee quantum leaps in technology capable of overcoming this brute disadvantage, particularly because search is as much about personalized customer service as it is about technical principles of information organization and retrieval. Current advantage in search is likely to be self-reinforcing--especially given that so many more people are using the services now than did when Google itself overtook other search engines in the early 2000s.
What does a world featuring an entrenched Google Book Search as gatekeeper look like? If we look only at access to knowledge, it's a vast improvement on the status quo. But when we consider the ways in which knowledge acquisition can be a zero-sum game, some worries arise. Privacy problems are endemic in such a project, dispelling any hope of a "right to read anonymously." The Open Content Alliance has questioned the restrictive terms of the contracts that Google strikes when it agrees to scan and create a digital database of a library’s books. Those restrictive terms foreshadow potential future restrictions on and tiering of their book search services.
Well-funded libraries may pay a premium to gain access to all sources; lesser institutions may be granted inferior access. If permitted to become prevalent, such tiered access to information could rigidify and reinforce existing inequalities in access to knowledge, and life chances. Information tiering inequitably subjects many groups to disadvantage, whereby others’ wealth can be leveraged into status, educational, or other occupational advantage. Economic functionalism is only one way of looking at the world; conflict theories of sociology emphasize the zero-sum games that arise in many walks of life.
Of course, it's important not to miss the forest for the trees; Darnton is right to predict that "Google Book Search really will make book learning accessible on a new, worldwide scale, despite the great digital divide that separates the poor from the computerized." Current access to knowledge is stratified in many troubling ways; the work of Sean Willinsky and Peter Suber identifies many "fatter targets" than Google Book Search.
Nevertheless, I think it's important we critique Google in these terms because it is likely to be the key private entity capable of competing or cooperating with academic publishers and other content providers. Alliances like Google Book Search + Publishers, or Apple + Recording Companies, deserve public scrutiny because they permit private parties to take on what have often been public functions of determining access to and pricing of information. Where "regulatory copyright" has answered such questions with compulsory licenses, the new alliances effectively put into place a regime of cross-subsidization resistant to public scrutiny or input.
In closing, I hope we begin to think about Google's actions here as both a private triumph, and a public failure, as Siva Vaidhyanathan has wisely put it. While we often hear about market failure,
"Public failure" [is a] phenomenon in which a private firm steps into a vacuum created by incompetent or gutted public institutions. A firm does this not for immediate rent seeking or even revenue generation. It does so to enhance presence, reputation, or to build a platform on which to generate revenue later or elsewhere. It's the opposite of "market failure." And it explains a lot of what Google does.
A rational copyright policy would have required digital deposit of all books granted copyright since digitization became widespread. It would have put government in the position of providing a service like Google book search, at least with respect to more current books. Just as Medicare provides a benchmark for private insurers' actions, that Public Book Search could be both an alternative and a model for Google--and could learn from Google, too.
But when the publishers lobby so effectively captures the US copyright lawmaking progress that even publicly funded work has routinely been locked away for pay, such hope may be naive. We must turn instead to finding creative ways to maintain pressure on Google to keep its project as public-spirited as possible. As Jack Balkin has suggested, private institutions are "where the action is" when it comes to knowledge policy in the digital age.