First, let me assert once again that Google of 2025 most certainly will not resemble the Google of 2005. It might not even exist....Ok. I will go farther than Derek on one point: copyright holders would suffer absolutely no harm from Google Library. But that's not the point. Courts don't care about real harm. They care about potential harm to potential markets and they take the word of the plaintiff to be the last word on the question....Saying "where is the harm?" (the Google corporate refrain) reveals an unwillingness to recognize the extent to which real-world effects influence most federal judges in copyright cases: not at all. Congress has made it clear that it does not care about real-world effects. Courts have as well (see the 9th Circuit in Napster or the Supreme Court in Grokster). All Congress cares about is the trump cards it can deal out to copyright holders. And courts tend to respect that even if it makes no sense or harms the public (see Eldred). So just as the widespread worship of Google baffles me, the widespread faith in the reasonableness of courts (especially SDNY and the 2d Circuit) baffles me more. Have we not learned any hard lessons from the last few years? How often since Feist has a federal court shown that it "gets it?" Certainly, in Kelly. But Kelly is no longer settled law. Google Print/Library might kill Kelly....I can't believe I have to remind anyone of this: DRM, nondisclosure, and patents destroy competition. That's why we have them. They are what Google depends on to do its job. These are not trivial problems. These are not neutral technologies. There are great complications and problems here. We should not be blind to them. Again agreeing with Derek -- "a Google loss would choke off competition." Exactly. Before Google loses, there is a crowding-out effect. After it loses, there will be a chilling effect. Meanwhile, publishers fear that a market that Amazon created for them: "search inside the book" licensing, will evaporate. Worse, of course, is possible. A bad loss threatens everything we hold dear about the Internet. And I am still waiting for anyone (Derek, Michael, Larry?) to come to terms with the privacy problems here. As Julie Cohen and Sonia Katyal have shown us, digital copyright and surveillance are intricately linked. What is Google doing to prevent anyone from snooping on our reading habits?...So to review: a Google win (unlikely as it is) would choke off competition. A Google loss would choke off competition. And we are unlikely to get the really cool public library text-search index we deserve in any case. This remains a good dream and a bad deal all around.
Posted by
Peter Suber at 10/28/2005 11:28:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
I recommend the OA tracking project (OATP) as the best way to stay on top of new OA developments. You can read the OATP feed on a blog-like web page or subscribe to it by RSS, email, or Twitter. You can also help build the feed by tagging new developments you encounter.
