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A message to you, Larry

March 23, 2011

Just two weeks before he retakes the reins as Google's CEO, Larry Page has been pulled down from his high horse, hauled off to the woodshed, and given a good paddling by a federal judge. The matter and tone of Judge Denny Chin's rejection of the proposed Google Books settlement are generally circumspect and measured - James Grimmelmann provides a lawyerly rundown - but when it comes to passing judgment on Google's actual behavior to date, Chin is blunt and scathing:

The [settlement agreement] would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions. While its competitors went through the "painstaking" and "costly" process of obtaining permissions before scanning copyrighted books, "Google by comparison took a shortcut by copying anything and everything regardless of copyright status." As one objector put it: "Google pursued its copyright project in calculated disregard of authors' rights. Its business plan was: 'So, sue me.'"

Google's scanner-in-chief is, of course, Larry Page. It was Page who, in 2002, photocopied the very first of the many millions of books that Google has run through its scanners, and since then it has been Page who has been the prime mover behind the company's "so, sue me" scanning strategy. Even today, after years of courtroom wrangling, Page seems absolutely convinced of the righteousness of his cause, dismissing the arguments of critics as little more than negotiating tactics. “Do you really want the whole world not to have access to human knowledge as contained in books?” he recently said to the writer Steven Levy, adopting the messianic tone that characterizes the proclamations handed down from the upper reaches of the Googleplex. “You’ve just got to think about that from a societal point of view.”

Society, you see, has a single point of view on this complicated matter, and it's the Page view.

I'm no fan of current U.S. copyright law. For years, legislators have given too much weight to private interests and too little weight to public interests in setting ever more onerous copyright restrictions. But nobody elected Larry Page to unilaterally rewrite copyright rules, and by now it should be clear that Google's interests are not the public's interests. Yes, it would be nice to share Google's view of itself as a selfless, righteous defender of the public's right to unbridled creativity, but the fact that the company just grabbed a frivolous patent on the use of logo doodles makes it clear that its governing point of view is not societal but commercial. It defends its own intellectual capital, to sometimes ludicrous extremes, even as it plays Robin Hood with the property of others.

The big question is, will Page learn anything from Judge Chin's slap? Will he be ever so slightly chastened, a bit more willing to take seriously views that conflict with his own, or will he view the ruling as just another example of the benightedness of those who don't share his perspective? The answer may well determine whether he succeeds as Google's new chief.

Comments

Very well said. Google's approach in so many areas reflects the sentiment that it's better to ask forgiveness than permission. Knowing that regulatory and legal institutions move slowly they, cynically, seek to capture as much territory as possible in case they are forced to give (some) back.

One can only hope that, eventually, the arrogance of the company's leadership will be checked by either legal or market constraints and I was cheered by Judge Chin's statement.

Posted by: Sprague Dawley [TypeKey Profile Page] at March 23, 2011 07:23 PM

I hope Larry doesn't back down. The best thing they can do is keep scanning. Disney and the copyright mafia have finally met someone bigger than they are.

Posted by: Kevin Kelly [TypeKey Profile Page] at March 24, 2011 03:32 AM

Your characterization of the doodle patent may or may not prove accurate, but at this point it's too soon to tell. The patent may be defensive (to prevent someone else, possibly headquartered in Redmond, from patenting a similar concept and then using the patent against Google). The test will be whether Google enforces their patent or grants free licenses to all comers.

Posted by: Paul Rubin [TypeKey Profile Page] at March 24, 2011 11:09 AM

Kevin,

re: "The best thing they can do is keep scanning."

I guess that means you're an opt-out guy (ie, power to the corporation). I'm an opt-in guy (ie, power to the people).

I share your distaste, though, for the "copyright mafia."

Nick

Posted by: Nick Carr [TypeKey Profile Page] at March 24, 2011 11:11 AM

“Do you really want the whole world not to have access to human knowledge as contained in books?”

I feel like something is missing here. Oh, right:

“Do you really want the whole world not to have [to pay for] access to human knowledge as contained in books?”

Posted by: Kelly Roberts [TypeKey Profile Page] at March 24, 2011 11:58 AM

Regarding the following:

"Will he be ever so slightly chastened, a bit more willing to take seriously views that conflict with his own, or will he view the ruling as just another example of the benightedness of those who don't share his perspective? The answer may well determine whether he succeeds as Google's new chief."

I have a feeling you didn't anticipate it could be parsed in a way you didn't intend :-)

[i.e., the "succeeds" outcome might be the arrogance choice, not the humility choice.]

Posted by: Seth Finkelstein [TypeKey Profile Page] at March 24, 2011 03:57 PM

Nick,

Yes, on the orphan book issue I am definitely an opt-out guy, and against those other powerful corporations.

But in fact, I agree with Judge Chen on the larger issue. I think the orphan copyright issue is too important to be determined by a settlement, but should be resolved by revising the law.

I am rooting for the orphans. And so far the powerful corporation which has treated them the best has been Google.

Posted by: Kevin Kelly [TypeKey Profile Page] at March 25, 2011 03:36 AM

Kevin and Nick,

Your disagreement overlooks the third option.

Copyright law already allows libraries to scan all of those books and even to use the digital copies to provide public access. Copyright already allows libraries to scan all of those books and build something along the lines of Google Search.

Where Google first ran afoul of copyright was in taking for itself a copy of all of those scans. (The libraries, frankly, also violated the law in permitting this to happen.) That Google would then try to resolve the complaint about that by offering to pay a pittance for expanded rights to the material was a good reason (imo) to reject the settlement - essentially as unconscionable and achieved under duress.

In other words, Google can keep on scanning all they like - just so long as they leave the digital copies with the libraries. Google can donate search technology to those libraries if they like. Google would lose exclusivity on book search but, so what? Google would lose leverage to dominate the limits and means of full-text distribution but, their leverage over that aspect of the project was an ill-gotten gain in the first place.

p.s.: economic growth since 1700: Before reaching for jingoistic explanations involving the US democratic form or US "exceptionalism" you might start more simply and notice the coincidence of expansion into an entire large continent's worth of land and raw materials coupled to an essentially rapacious culture (unaware of the concept, even, of sustainability). You also might note improvements in whaling by that rapacious technology followed hard on by the introduction of petroleum products as a major energy source in the mid 19th century. If you don't think that those very basic changes in raw material, land, and fuel inputs with attendant and unsurprising supply and demand increases are vastly more important than vague political agendas, I think you are missing the big picture.

Posted by: Tom Lord [TypeKey Profile Page] at March 25, 2011 02:57 PM

"It defends its own intellectual capital, to sometimes ludicrous extremes, even as it plays Robin Hood with the property of others."


Ain't that the truth. If there is one single overriding moral law within the digital universe, that's it.

Posted by: John Schoettler [TypeKey Profile Page] at March 26, 2011 01:28 AM

"It defends its own intellectual capital, to sometimes ludicrous extremes, even as it plays Robin Hood with the property of others."


Ain't that the truth. If there is one single overriding moral law within the digital universe, that's it.

Posted by: John Schoettler [TypeKey Profile Page] at March 26, 2011 01:29 AM

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