on 9 September 2009Microsoft has weighed in to the Google Books debate, filing a brief in its capacity as a publisher (of books, not software) in the class action suit that seeks to give Google the right to digitise every book in America. It wants the case thrown out, and it’s right.
The ultimate reason why Microsoft is objecting, of course, is that it’s a competitor of Google’s, most directly with its new Bing search engine; and a fundamental principle of modern corporate practice, as they do teach you at Harvard Business School, is that your lawyers have to wreck or indefinitely obstruct anything your competitors want to do. The proximate reason is that, should the deal between Google and (parts of) the US publishing industry be approved, Google will have the right to create and distribute unlimited digital copies of any book, without obtaining permission or negotiating terms with its publisher or writer. For publishers, including Microsoft Press, and authors who would prefer to retain the control over their work that copyright law has given them for the past century (in its present form, and two centuries before that in various other forms), it’s an astonishing attempt to use a private business arrangement to overturn rights that have long been regarded as inalienable.
Much as it pains me to agree with Microsoft about something, I can’t improve on its summary of the objections:
A class action settlement is the wrong mechanism, this court is the wrong venue and monopolisation is the wrong means to carry out the worthy goal of digitising and increasing the accessibility of books.
As Google would no doubt respond, publishers and authors will have the ability to opt out. But why should they have to opt out of a deal in which they were never involved? One of the basic principles of modern copyright is that you don’t have to apply for it or register it; by creating a work, you become its copyright owner, and nobody can reproduce it without your permission. Google wants this principle abandoned without any legislation, political debate or democratic accountability.
The more you think about it, the less likely it must be that Google Books will go ahead via this route. But there’ll be other routes. First, what about an opt-in rather than opt-out arrangement? This sounds much more palatable. Result: every major publisher opts in, because (a) it’s a bandwagon, and publishers love bandwagons, and (b) they can make a few extra quid straight away, while salving any worries about the future of book sales by telling themselves vaguely that the internet was always going to kill book sales and they’ve been very clever and sensible to go with the flow rather than against it, unlike all those silly music publishers.
Meanwhile, a rump of independents and individual authors stay out, because having thought through the issues they’d rather keep control of their intellectual property. Their books begin a quick slide into obscurity, read less and quoted less than those in Google’s instant-access system, disappearing from the reading lists of institutions who must be realistic about what their students can afford and can be bothered to source.
Or Google abandons the class action process and goes for a political settlement. As tech industry watchers know very well, copyright law is made these days by lobbyists, not politicians. So perhaps the fundamental rights of authors can indeed be overturned. If so, what’s certain is that it won’t be done in a way that simply enables texts to be freely copied and distributed, as the ‘freetard’ faction might hope. While primary legislation would presumably avoid Google being the sole beneficiary, it would only pass if vested interests in general could see a fast enough buck in it.
‘Information wants to be free’ is not a slogan that much appeals to the US ruling class, but freeing big business to exploit copyright works without consulting their originators revives conservative capitalism’s fondest dream: ‘Labour ought to be free.’
adambanksdotcom Apple founder @ronaldgwayne has had several careers; on this showing, tech policy punditry could be a keeper