GooglePrint

My father clashes with Larry Lessig over GooglePrint:

IPcentral Weblog: Wednesday Morning Fights: DeLong vs. Lessig: Larry Lessig objects to my characterization of his characterization of Causby, and its connection to the Google Print program. At the end of the entry, though, he comments on an area in which we are in partial agreement, and that is worth re-emphasizing:

But there is one great and true part to DeLong's email. As he writes,

Causby was entitled only to the decline in his property value, not to a share of the gains from the air age.

Truly, if there is a principle here, that should be it. The baseline is the value of the property BEFORE the new technology. Does the new technology reduce THAT value. Put differently, would authors and publishers be worse off with Google Print than they were before Google Print?

To ask that question is to answer it -- of course the authors and publishers are better off with Google Print.

Are they as well off as they could be, if the law gives them the power to extort from the innovator some payment for his innovation?

To ask that question is to understand why this case has been filed: Like Valenti with the Betamax, the publishers and Authors Guild simply want to tax the value created by Google Print. They are not complaining about any "decline in [their] property value" caused by Google Print. They are instead racing to claim the value that ancient law is said to give to them, despite the harm that claim produces for "progress."

This is indeed the crucial distinction. But I don't think Lessig is fair to either Valenti or the authors; they have genuine and legitimate concerns about the impact of the new technologies on their existing values.

Would they like to hold the new technologies for ransom? Probably. There is certainly grounds for suspicion in a recent oped co-authored by Pat Schroeder. And I agree with Lessig that such ransom should not be permitted, as the Supreme Court specifically noted in the Sony case. But to refuse to allow ransom does not mean that the legitimate interests can be ignored.

In the case of Google Print, the publishers legitimate concerns include two problems:

1) A digital copy of each book goes to the participating library, and the only restriction is that it abide by copyright law. There can be no guarantee that the library will impose security akin to that adopted by Google.

2) The law has no doctrine that allows Google to be special. So what Google is allowed to do, others can do. The authors and publishers can legtimately object to having a huge burden of policing imposed on them. In our internal PFF debates, I am the Google-symp -- but I have not come up with a way to solve these problems.

Nonetheless, as I said in another, longer recent discussion of these issues: "So the bottom line is -- and must be -- that when technological change occurs, we as a society will not automatically assign the value created by the new technology to existing property holders.

I tend to put on my right-wing public-choice hat here, and side with GooglePrint. The private beneficiaries from assigning too much of the value of innovation to the dead hand of old property rights are concentrated. The private beneficiaries of assigning too little of the value are diffuse. In a public-choice world ruled by lobbyists, there will be strong pressures on legislation and law to overprotect existing property. And it is the duty of intellectuals seeking the sweet spot to push back--to be an anti-lobbyist lobby.

Comments

[Slocum]

"The law has no doctrine that allows Google to be special. So what Google is allowed to do, others can do. The authors and publishers can legtimately object to having a huge burden of policing imposed on them. In our internal PFF debates, I am the Google-symp -- but I have not come up with a way to solve these problems."

But others can *already* do what Google is doing--and more, with far greater potential impact. The publishers are going to have the burden of policing regardless of what happens to the legal status of Gooleprint.

What is my evidence? A scanned and OCR'ed version of the most recent Harry Potter volume appeared on file sharing networks and newsgroups within *hours* of publication. My wife pre-ordered the book and was anxiously waiting for it--just to tease, her, I showed her the text on the net before FedEx had even delivered it.

The point is that Google is not using scanning technology that is not widely and cheaply available. A consumer-grade scanner (or better, a digital camera--which is much faster) and consumer-grade OCR software will do the trick (as the almost instantaneous scanning of 'Harry Potter and the Half Blood Prince' made clear).

[guerby]

"Just to illustrate how great out ignorance of the optimum forms of
delimitation of various rights remains - despite our confidence in the
indispensability of the general institution of several property - a few
remarks about one particuilar form of property may be made. [Hayek then
introduces immatierial recently invented property rights invented as
example literary productions and technological inventions.]

"The difference between these and other kinds of property rights is
this: while ownership of material goods guides the user of scarce means
to their most important uses, in the case of immaterial goods such as
literary productions and technological inventions the ability to produce
them is also limited, yet once they have come into existence, they can
be indefinitely multiplied and can be made scarce only by law in order
to create an inducement to produce such ideas. Yet it is not obvious
that such forced scarcity is the most effective way to stimulate the
human creative process. I doubt whether there exists a single great work
of literature which we would not possess had the author been unable to
obtain an exclusive copyright for it; it seems to me that the case for
copyright must rest almost entirely on the circumstance that such
exceedingly useful works as encyclopaedias, dictionaries, textbooks and
other works of reference could not be produced if, once they existed,
they could freely be reproduced.

"Similarly, recurrent re-examinations of the problem have not
demonstrated that the obtainability of patents of invention actually
enhances the flow of new technical knowledge rather than leading to
wasteful concentration of research on problems whose solution in the
near future can be foreseen and where, in consequence of the law, anyone
who hits upon a solution a moment before the next gains the right to its
exclusive use for a prolonged period."

The Fatal Conceit: The Errors of Socialism, 1988 (p. 35) Hayek

[Dave]

Well here is a question... until about ten minutes ago I was squarely on the side of Google. I remain there, at least in a backwards-looking sense.

Here is the problem that came to my mind, though: what are the implications for sales of books going forward? Will, for example, state university systems buy fewer copies of a new book, on the grounds that modern searching will permit users to determine whether or not they need the book while it is checked out or otherwise unavailable?

This is the other side of the coin, I think, of Congress's recent extensions of the copyright period. In that case, I think the period should NOT have been extended retroactively--the purpose of the protection is to provide an incentive to create, and existing works have already been created so extending the period does nothing.

Here, I think a compromise might be a policy that:

(a) establishes a _small_ "compulsory license to index" fee (possibly based on the size of the work) that would be similar to the compulsory license fees to songwriters

(b) offers a way for current copyright holders to register to collect the fee on their works (and Google must pay the fee for those holders who care enough to register)

(c) makes such registration for fee transmittal easily available for newly published works

Another alternative, which would remove the cost barriers to entry for alternative index companies, is to figure a way that the search of copyrighted material could produce automatic royalties and be billed in nano-payments at the search result level. (I use "nano-" to suggest even smaller than the traditional term micropayments.)

Then again, it's entirely possible that the sales generated by a Google-guided discovery of the book would be so large in comparison to such nano-payments, or to sales lost, that the net to the copyright holders would still be a significant gain.

[johnchx]

"To ask that question is to answer it -- of course the authors and publishers are better off with Google Print."

Hmmm...really? Exactly how much are authors and publishers willing to pay for the privilege of being included in Google Print?

[cafl]

Google Print does not provide searchers with full text of a work (although perhaps a full text could be assembled by constructing the proper (large) sequence of searches returning small parts of the text). However, authors and publishers have responded to the service as if it were providing full text. So the question arises, what would be the impact on the author of full text availability of older titles on the web? Fortunately, there is some data available here:

http://www.baen.com/library/palaver6.htm

(Or click the url under my name). The author writing the essay at the link placed old works on the website of his publisher and saw his sales rise. Read it -- it's quite interesting.

[TFD]

Brad: Is that really your father?

[wkwillis]

Charlie Stross
http://www.antipope.org/charlie/blog-static/

can't emphasize this strongly enough; in talking about getting permission to index the books from publishers, Google is talking to the wrong people.

Let me give you a concrete example. I'm a relatively recently published author, and my book contracts all discuss electronic reproduction rights. However, none of my book contracts discuss the issue of the rights to index the book and publish the index for use by third parties. Arguably, this is a separate contractual right and one that is not implicitly granted to any publishers simply by their having obtained a license to publish the work in its entirety as an ebook.

But that's not all. I'm published in the USA and the UK (and in translation in a whole lot of other countries). The English language ebook rights to my novels are split, by territory; before I could release Accelerando as a free download I had to obtain permission from both my US publisher (Ace, an imprint of Penguin) and my UK publisher (Orbit, an imprint of Time Warner). Without the consent of one of these publishers, it would be illegal to make the ebook available in their territories (as enumerated at mind-numbing length in the book contract -- if you've never seen one of these, it's like the deed of sale for a house).

Guy has a point. It's his work, he calls the shots.

[Doctor Jay]

Guy has a point. It's his work, he calls the shots.

When it comes to publishing, you have a point. Google isn't publishing, it's indexing.

As to the claim that a text could be reconstructed, that would take substantial work. That work would then have an identifiable party associated with it, who is clearly a wrongdoer here. And, by the way, text reconstruction is already possible, check out a book and take it home to you scanner with OCR.