more on "Google Print" and Ethics

[David Farber <dave () farber net>]

Begin forwarded message:

From: Tim O'Reilly <tim () oreilly com>
Date: August 12, 2005 7:59:21 PM EDT
To: Lauren Weinstein <lauren () vortex com>
Cc: dave () farber net
Subject: Re: "Google Print" and Ethics


Gosh, I'm a publisher, and I see the ethics very differently.  Here's  
the way publishing actually works:

* Author labors for a year or years to produce a work, often in the  
hope that he or she will "win the lottery" and have a bestseller.   
Publisher effectively gets its product for less than the cost of  
production (except in the case of the bestselling authors at the top  
of the heap, who get overpaid for their efforts, like most  
superstars.)  Other authors do it for the reputation, or the  
readership, but whatever the reason, publishers don't really pay very  
much for the IP that they "own."

* Publisher throws the product into the market and sees what sticks.   
Most books are never promoted, never reprinted.  Author didn't win  
the lottery.  (Many years ago, the Science Fiction Writers of America  
audit committee did an amazing writeup in the SFWA bulletin about the  
economics of science fiction publishing.   Boiled down to a nutshell,  
what they discovered was this:  that publishers calculated their  
advances to authors on a first print run and an expected return rate  
(50% in the case of mass market science fiction).  If the book did as  
expected, the author is out of luck, because the publisher only would  
continue to support the book if the return rate was less than  
expected.  In short, it's a "house always wins, player almost always  
loses, but enough people win big to keep the suckers coming back"  
kind of business.)  (I note that not all publishers operate like this  
-- including O'Reilly! -- but there's enough truth to it as an  
industry pattern that it begs the ethics question.)

*  Publishers do pay for the cost of printing and the risk of  
returns, and a lot of operational cost, so this business model is the  
result of a lot of economic realities.  This is not typically a  
"rich" industry, and there are a lot of publishers who, like authors,  
do it as a labor of love.  Nonetheless, once the costs have been  
sunk, and the experiment run, the "long tail" of publishing is left  
to trail away on its own, without a lot of continued promotion and  
attention.

* Along comes a player who says "I have a way to promote those books  
that the publishers have thrown away, creating an opportunity for  
them to find readers, and eventually, sales."  The publishers  
complain, because they are worried that someone else is going to make  
money from their slag heap, or more likely, because they are worried  
that there's some downside risk to their top sellers, even if there's  
a lot of benefit to the bottom and mid-list books.  This is the same  
situation I wrote about back in 2001 in my essay <a href="http:// 
www.google.com/url?sa=U&start=1&q=http://www.openp2p.com/pub/a/p2p/ 
2002/12/11/piracy.html&e=10342">Piracy is Progressive Taxation</a>

I find the argument to ethics on the other side unconvincing.  You  
can cast it how you want.  Google isn't "borrowing" the books from  
libraries.  They are partnering with libraries to do something that  
is very much in line with the mission of libraries, which is to store  
and share human knowledge.  As to whether the reaction would be the  
same if Microsoft, and not Google, had done it:  I suspect it would  
indeed be the same.  Publishers would be complaining, and I would be  
applauding.  You say:


> Google made
>      essentially a "sweetheart" deal with libraries that benefits
>      Google vastly and also benefits the libraries, but pays not a
>      dime to the copyright holders.

Yes, and what's wrong with that?  If the libraries had done it  
themselves, would the copyright holders have any grounds to  
complain?  If they then shared their scanned copies for the limited  
purposes of making a super card catalog (which is what Google's  
Library service provides), would the copyright holders have the right  
to complain?  That's essentially what's happening, except that Google  
is facilitating the effort.

If Google were offering the full Google Print style service, where  
they were actually showing full pages from the copyrighted work, I'd  
completely agree with you.  But they are scanning the books in order  
to provide search, and showing only snippets that would indeed be  
completely fair use if the catalog were created manually.  It's less  
than is quoted in any book review.

You say:


> This is all yet another example of an extremely worrisome sensibility
> in some segments of the Internet world -- that somehow the virtual
> world of the Internet exists (or should exist) outside and apart
> from the rules of law and concepts of ethics that have long guided
> us in the physical world.  It's obvious that laws must change and
> evolve faster to keep pace with the rapid rate of technological
> change -- many of today's technology-related problems are the result
> of just such a lag.  But basic ethics should *not* be degraded in the
> Internet world, simply by virtue of the facts that servers in
> data centers and billionaire-based "coolness" are involved.

I couldn't disagree more.  Law is always dynamic, and the way that it  
catches up with reality is through people pushing the boundaries.   
(See Lessig's Code and Other Laws of Cyberspace for some great  
accounts on this front.)  And the reality that it tends to catch up  
with are the prevailing ethics of a society.  And the ethics of  
copyright, to me, are to benefit the author and the reader, and to  
incentivize investment in the "progress of science and the useful  
arts."  (I know I'm borrowing from patent language here, but the same  
principle applies.)

------------------------------------------------------------------------ 
-----------
Tim O'Reilly @ O'Reilly Media, Inc.
1005 Gravenstein Highway North, Sebastopol, CA 95472
707-827-7000
http://www.oreilly.com (company), http://tim.oreilly.com (personal)



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