Piracy_ The Intellectual Property Wars from Gutenberg to Gates - Adrian Johns [298]
Google's initial response displayed something of the digital hacker's disdain for an irrational and obsolescent principle left over from the old- mediaworld. It proposed an opt-out protocol, demanding that publishers submit lists of books to be excluded from the program. The suggestion was obviously going to be unacceptable to the publishers, and they duly filed lawsuits in 2005 accusing the company of"massive copyright infringe- ment."24 If the case had gone to the Supreme Court, it would probably have been the most important in the field since Donaldson v. Becket established the copyright principle in 1774. It might well have led to a radical overhaul of the principle.
The stakes for the publishers in particular were fundamental. The prospect of a digital universal library made actual what had for centuries been a complaint in principle: namely, that owners might use copyright to suppress publicly beneficial knowledge. Publishers could do this by invoking copyright against the scanning projects for out-of-print books, even though there was little chance that they themselves would ever reissue them. As a result, even "orphaned" works-those for which there was no known current copyright owner-might not be made available, for fear of lawsuits springing up in future. The implication was not merely that a given work would not be available online, moreover, but that an inaccurate-or even spurious -version would be, because it happened to be one on which the copyright had expired.'5 Such texts might then become default standards, byvirtue of being the ones immediately accessible in the next generation's research tool of first resort. Moreover, by the time the case got to Washington, scanners would inevitably have created a vast digital trove of more authoritative material that would be hidden from public view only because of copyright. It could straightforwardly and instantly be opened up if only copyright were to permit it. In other words, the argument from suppression -which throughout the eighteenth, nineteenth, and twentieth centuries was advanced repeatedly by skeptics, only to fail as hypothetical -would suddenly have real purchase. And this would occur at exactly the moment when the rise of open-access ventures would have made the publishers' contention that copyright encouraged creativity by securing the authenticity and economy of authorship dubious. It might well seem that copyright could remain inviolate only at the expense of its own purpose of enhancing the public good.
The case was never going to be allowed to get that far. After more than two years of negotiations, on October 28, 20 o8, Google and the publishers announced a settlement. By this point 7 million books had been scanned, 4-5 million of them being in copyright but out of print. The two camps would now cooperate, they announced, not only to resolve the status of those works, but to create a new foundation for creative property in digital books. The import of the deal was widely acknowledged. The technophile magazine Wired declared that Google now had a "clear field" for creating a "global digital library."26 The New York Times described it as "a road map for a possible digital future for publishers and authors." The University of California, Stanford University, and the University of Michigan all declared that the result gave greater benefits than would have resulted even if Google had won its case. "It will now be possible, even easy, for anyone to access these great collections from anywhere in the United States," announced Paul N. Courant, University Librarian at Michigan.
The centerpiece of the plan was a new "Book Rights Registry." This would be a nonprofit institution charged with representing the interests of copyright holders -in principle, not just to Google, but to other, similar digital ventures. It would collect