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by Jack Kessler,

March 15, 2009 issue. This file presents an archive copy of the issue of the FYI France ejournal, ISSN 1071-5916, which was distributed via email on March 15, 2009.

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Darnton redux, on ebooks & digital libraries

&, now, The Google Settlement


If the question of "ebooks" has frustrated you, as it has so many -- i.e. what actually is happening? what is not? how will or may any of this change, what we now may or may not be doing when we "read"?, and so on -- an excellent two-stop primer and update appears in two recent issues of the New York Review of Books.

It comes courtesy again of the Harvard Library director and France scholar Robert Darnton -- see his previous NYRB article, "The Library in the New Age",, see also

This time there are -- and both are online, for easy access from anywhere --

1) an interesting new article by Darnton himself --

-- and, even more interesting,

2) a debate -- two good letters, to which Darnton replies, in the most recent NYRB issue --


In his article, Darnton is simultaneously enthusiastic about and sceptical of Google: first he offers some historical context --

    "The eighteenth century imagined the Republic of Letters as a realm with no police, no boundaries, and no inequalities other than those determined by talent.

    "Anyone could join it by exercising the two main attributes of citizenship, writing and reading. Writers formulated ideas, and readers judged them. Thanks to the power of the printed word, the judgments spread in widening circles, and the strongest arguments won.

    "The word also spread by written letters, for the eighteenth century was a great era of epistolary exchange. Read through the correspondence of Voltaire, Rousseau, Franklin, and Jefferson -- each filling about fifty volumes -- and you can watch the Republic of Letters in operation. All four writers debated all the issues of their day in a steady stream of letters, which crisscrossed Europe and America in a transatlantic information network..."

-- although he is careful about that, as well --

    "But before this picture of the past fogs over with sentiment, I should add that the Republic of Letters was democratic only in principle. In practice, it was dominated by the wellborn and the rich... Despite its principles, the Republic of Letters, as it actually operated, was a closed world, inaccessible to the underprivileged..."

-- and then he turns to The Question of the Hour --

    "If we turn from the eighteenth century to the present, do we see a similar contradiction between principle and practice -- right here in the world of research libraries?"


Copyright, says Darnton, has become one of the current problems:

    "...copyright was created in Great Britain by the Statute of Anne in 1710 for the purpose of curbing the monopolistic practices of the London Stationers' Company and also, as its title proclaimed, 'for the encouragement of learning.' At that time, Parliament set the length of copyright at fourteen years, renewable only once.

    "The Stationers attempted to defend their monopoly of publishing and the book trade by arguing for perpetual copyright in a long series of court cases. But they lost in the definitive ruling of Donaldson v. Becket in 1774.

    "When the Americans gathered to draft a constitution thirteen years later, they generally favored the view that had predominated in Britain."

-- but,

    "How long does copyright extend today? According to the Sonny Bono Copyright Term Extension Act of 1998 (also known as 'the Mickey Mouse Protection Act,' because Mickey was about to fall into the public domain), it lasts as long as the life of the author plus seventy years. In practice, that normally would mean more than a century... we live in a world designed by Mickey Mouse, red in tooth and claw."

-- and there also is the problem of money,

    "The result stands out on the acquisitions budget of every research library: the Journal of Comparative Neurology now costs $25,910 for a year's subscription; Tetrahedron costs $17,969 (or $39,739, if bundled with related publications as a Tetrahedron package); the average price of a chemistry journal is $3,490; and the ripple effects have damaged intellectual life throughout the world of learning. Owing to the skyrocketing cost of serials, libraries that used to spend 50 percent of their acquisitions budget on monographs now spend 25 percent or less.

    "University presses, which depend on sales to libraries, cannot cover their costs by publishing monographs. And young scholars who depend on publishing to advance their careers are now in danger of perishing."

-- and now, ironically, for the latest news in our digital library era,

    "...this picture of the hard facts of life in the world of learning is already going out of date. Biologists, chemists, and physicists no longer live in separate worlds; nor do historians, anthropologists, and literary scholars. The old map of the campus no longer corresponds to the activities of the professors and students. It is being redrawn everywhere, and in many places the interdisciplinary designs are turning into structures.

    "The library remains at the heart of things, but it pumps nutrition throughout the university, and often to the farthest reaches of cyberspace, by means of electronic networks."

So, Darnton believes,

    "The eighteenth-century Republic of Letters had been transformed into a professional Republic of Learning, and it is now open to amateurs -- amateurs in the best sense of the word, lovers of learning among the general citizenry. Openness is operating everywhere, thanks to 'open access' repositories of digitized articles available free of charge, the Open Content Alliance, the Open Knowledge Commons, OpenCourseWare, the Internet Archive, and openly amateur enterprises like Wikipedia. The democratization of knowledge now seems to be at our fingertips. We can make the Enlightenment ideal come to life in reality."

But Darnton is worried in this final aspiration, now, by the recent Google Settlement --

-- he writes,

    "The settlement creates an enterprise known as the Book Rights Registry to represent the interests of the copyright holders. Google will sell access to a gigantic data bank composed primarily of copyrighted, out-of-print books digitized from the research libraries. Colleges, universities, and other organizations will be able to subscribe by paying for an 'institutional license' providing access to the data bank.

    "A 'public access license' will make this material available to public libraries, where Google will provide free viewing of the digitized books on one computer terminal. And individuals also will be able to access and print out digitized versions of the books by purchasing a 'consumer license' from Google, which will cooperate with the registry for the distribution of all the revenue to copyright holders. Google will retain 37 percent, and the registry will distribute 63 percent among the rightsholders.

    "Meanwhile, Google will continue to make books in the public domain available for users to read, download, and print, free of charge. Of the seven million books that Google reportedly had digitized by November 2008, one million are works in the public domain; one million are in copyright and in print; and five million are in copyright but out of print. It is this last category that will furnish the bulk of the books to be made available through the institutional license."

-- and the result, he says,

    " a proposal that could result in the world's largest library. It would, to be sure, be a digital library, but it could dwarf the Library of Congress and all the national libraries of Europe. Moreover, in pursuing the terms of the settlement with the authors and publishers, Google could also become the world's largest book business -- not a chain of stores but an electronic supply service that could out-Amazon Amazon...

    "Google's generosity will be a boon to the small-town, Carnegie-library readers, who will have access to more books than are currently available in the New York Public Library. Google can make the Enlightenment dream come true... If approved by the court -- a process that could take as much as two years -- the settlement will give Google control over the digitizing of virtually all books covered by copyright in the United States."

-- so Darnton's chief concern appears to be,

    "Google will enjoy what can only be called a monopoly -- a monopoly of a new kind, not of railroads or steel but of access to information... Google's record suggests that it will not abuse its double-barreled fiscal-legal power. But what will happen if its current leaders sell the company or retire?"


In the latest NYRB, then, Darnton's friendly critics -- one a distinguished fellow-librarian who views GoogleBooks as being a much-needed "first step", the others a group representing several well-known authors -- worry that Darnton is worried:

The librarian protests, "Google doesn't have anything like a monopoly over access to the information in the books that are subject to the terms of the settlement. For a start (and of stunning public benefit in itself), up to 20 percent of the content of the books will be freely available on the Internet, and all of the content will be indexed and searchable... This greatly weakens the market power of Google's product."

He goes on, "Darnton is also concerned that Google will employ the rapacious pricing strategies used by many publishers of current scientific literature, to the great cost of academic libraries, their universities, and, at least as important, potential users who are simply without access. But the market for current scientific literature has little in common with that for out-of-print monographs...

"The settlement is far from perfect... But in the absence of the settlement... we would not have the digitized infrastructure to support the twenty-first-century Republic of Letters... Of course I would prefer the universal library, but I am pretty happy about the universal bookstore. After all, bookstores are fine places to read books, and then to decide whether to buy them or go to the library to read some more."

-- to which Darnton replies,

    "True, there seems to be no alternative, because we have failed to finance large-scale digitization with public money. Google has the means, the skill, and the audacity to create a gigantic database by digitizing millions of books. I sympathize with those who say it is better that this database should exist, even if we will have to pay for access to it, than if it had never been created."

-- but Darnton's worries are partly anti-commercial bias, perhaps --

    "I worry about commercializing the content of our research libraries"

-- also though very pragmatic --

    "What worries me is the fact that Google has no competitors... the class action character of the suit brought against Google by the authors and publishers means that no other enterprise could mount a rival digitizing operation, even if it could afford to do so, without striking deals with the copyright owners book by book, a virtual impossibility."

[Some explanation, for those unfamiliar with the quaint and complicated "class action" notion of US law: by adequately representing all current but also possible members of the "class" of plaintiffs, a small group can secure or deny the claims of all others similarly-situated, both now and in the future... Always of course there are questions of how adequate was the representation, and how similar the situation, as between those who sued and others including many who never even heard about it.

[But US courts have powers unappreciated by many in the US itself, and unknown and even unimaginable to people from other legal traditions. A US court will not even 'hear' / listen-to a later lawsuit 'barred' previously by an effectively-decided class action: such are the mysteries of The Common Law, US-style -- so yes this Settlement could be a very serious impediment to change, technical or social or otherwise, later on. On the other hand, though, as Darnton also worries, maybe we need it nevertheless.]

The group of literary executors writing to NYRB wisely warns, too, "...once work has been digitized, it becomes very difficult to control. In many places, and of many authors, it can be said that only a lingering affection for the book as an object sustains sales, since an author's works are so widely available electronically. Mass digitization will profoundly affect the viability of our system of copyright, and we need to ask, as not merely a parenthetical matter, how we will support creative work and the open exchange of ideas in its wake."

-- to which Darnton responds with his own scholar's additional concern,

    "Will Google select the best editions of serious works of literature? As I argued in an earlier article --

    -- I worry that Google's relevance ranking will favor inferior editions, and that Google's commitment to algorithms excludes any concern for bibliographical rigor."


France has worried much about those relevance rankings, already, with the fame of their Revolution far outdistancing the substance and careful analysis of it which generations of thoughtful writers and careful scholars have tried to establish -- "The Scarlet Pimpernel crushing '93", as one BnF Président puts it --

-- and any bibliographer, or any scholar worrying over a bibliography, should be concerned as well. There have been so many printings and piracies and versions and variant editions -- so, which ones will float to the top of the information search & retrieval heap now?


Robert Darnton has a particularly-useful personal background for his role, here: he is a respected scholar and researcher, a leading US expert on 18th c. France, and currently he is the chief of Harvard's library, and he even has been a journalist himself --

-- and his correspondents, in the NYRB March 26 issue, include the University of Michigan Librarian who is a noted economist and an authority on precisely the sort of "public good" a non-commercial digital library competitor of GoogleBooks might represent, in the US context anyway --

-- and the literary executors a.k.a. very interested parties represent heirs to famous writers such as Joseph Brodsky, Anthony Hecht, James Merrill, Mona Van Duyn, Auden, Mary McCarthy, and Thornton Wilder. The result is an instance of what academics are pleased to call "an interesting contrast of opinion": always more clarifying and instructive than the mere presentation of a case, or than the know-nothing hysteria which too often characterizes both "ebook" and general "digital libraries" debates.


An Opinion Note:

One of the best attributes of Darnton's writing is his immensely-practical side: in his Feb 12 article he says,

    "What will happen if Google favors profitability over access? Nothing, if I read the terms of the settlement correctly. Only the registry, acting for the copyright holders, has the power to force a change in the subscription prices charged by Google, and there is no reason to expect the registry to object if the prices are too high.

    "Google may choose to be generous in its pricing, and I have reason to hope it may do so; but it could also employ a strategy comparable to the one that proved to be so effective in pushing up the price of scholarly journals: first, entice subscribers with low initial rates, and then, once they are hooked, ratchet up the rates as high as the traffic will bear."

-- aka low-balling, bait-and-switch -- the way too many of us had our earliest experience with the vendors of our first used cars -- "we're all out of that model"... or to use a more current and universally-pressing example, "it's a cost-of-living increase"...

High-binding commercial practices are not usually characteristic of young mega-firms on their initial rolls toward fame in finance, no -- but all firms fall into such practices eventually, and particularly when times get bad, which times always do.

Darnton continues, wisely and pragmatically,

    "Free-market advocates may argue that the market will correct itself. If Google charges too much, customers will cancel their subscriptions, and the price will drop.

    "But there is no direct connection between supply and demand in the mechanism for the institutional licenses envisioned by the settlement. Students, faculty, and patrons of public libraries will not pay for the subscriptions. The payment will come from the libraries; and if the libraries fail to find enough money for the subscription renewals, they may arouse ferocious protests from readers who have become accustomed to Google's service.

    "In the face of the protests, the libraries probably will cut back on other services, including the acquisition of books, just as they did when publishers ratcheted up the price of periodicals."

-- and he appears to be writing as one who knows... So, picture enraged senior faculty, protesting at the librarian's door at the mere re-shelving not to speak of discontinuation of some obscure but personally-favorite periodical... he's "been there"...

Darnton's primary concern, and rightfully so, is with industrial concentration: GoogleBooks is a monopoly, so far -- pace its many competitors, for now nobody digitizes so well or so massively as does GoogleBooks -- and monopolies famously abuse -- and, intentionally or mistakenly, the current generally well-intentioned Google Inc. now is taking steps, with this Settlement and otherwise, to cement their lead position.

There is a tactical question in all this, then -- one posed by Darnton but also by his critic Courant -- of timing. Phasing-in the digital library era may call for some new thinking and much compromising, as both appear to admit: Courant enthusiastically, Darnton perhaps less so but still with high hopes for his Republic of Letters, eventually.

So, for now do we let Google do it -- get the ball rolling, the basic digitizations done, the users acclimatized and accustomed to "reading online", the economics put in some sort of sustainable order? Is this seeding, pump-priming -- so much is being "pump-primed", these days... -- the way government did it by developing and encouraging the Internet?

Then, a little later on, will we equally-encourage the growth of GoogleCompetitors: other commercial firms, who may begin by crafting GoogleBookApps to improve that product, but eventually develop competing services which cut into Google's dominant market share... that is what happened somewhat to Microsoft, or maybe not... also, then, will there be, eventually, increased government-supplied regulation, to remedy and re-balance the most egregious monopoly abuses... Is this the model?

It sounds familiar. It sounds like The American Way, in fact: the old dynamic balance, between initiative by the individual and regulation by the collectivity -- Andrew Carnegie, JD Rockefeller, Henry Ford, Bill Gates, now the Google Book Rights Registry... trusts & trust-busting... Perhaps it will work again.

The model hasn't been working so well in finance, lately. But then the safest time to take an airplane trip is just after there has been a spectacular crash: it's then that inspections and safety measures and general vigilance all are at their tightest.

So perhaps this is the time to take the step in digital information: turn loose the dogs of monopoly, upset the applecarts... Darnton and Courant both seem to be straddling the question closely, the one with more enthusiasm than the other but both recognizing the potential benefits: properly administered, the checks & balances & market mechanisms & regulatory structures of the US System may be up to the task, and the timing for mass digitization may be not only right but exactly right.

Darnton's fears might have been far more justified during the laissez faire heyday of the 1990s, when commercial & government regulation were characterized more by Enron slick practices and sarcasms than by anything effective: Google may be better-behaved than all that, now, and Obama-era regulators better-armed and more resourceful. So maybe Google won't abuse and dominate, as Darnton fears, or at least now won't be allowed to.

And, for Darnton, all this current turmoil may simply be because it's no longer the 18th century... As some in that century predicted, and others feared, the demands of 21st century democracy are different. Mass access, to all that data... who knew, that the true masses ever would be involved at all? More extreme risk-taking perhaps is needed to satisfy, and to regulate, such mass and globalized participation now. Here's hoping, then, that the modern plebians will be wiser than Plato's demos was thought to be: less easily manipulated, too, by folks like Google or such as Google may one day become.

We'll see... It seems, though, that an air of inevitability surrounds the effort, now, to push digital information and access forward. We have a digital information overload flood, already: it's no longer a question of stopping that but of channeling it -- if, in the US, "public goods" can't do it, perhaps "private goods" can, and Google Inc. has risen to the latter challenge and is doing so well.

It is important to remember too, though, that in other countries and cultures the reverse is true: in many places "public" trumps "private", in these matters, notably in Europe but also in Asia and other locales. So as we in the US construct private enterprise commercial digital libraries, satisfactorily "regulated" or otherwise, it will be good to remember that when we reach the globalizing phase the "others" out there may do all this very differently.

And remember too that reaching that globalizing phase takes about a millisecond, nowadays -- hard-to-control, as the literary executors suggest -- as long as it takes for some kid in Sri Lanka or Tibet or Somalia or Ecuador to flip open a cell-phone and type in a URL... So, yes, it may very well be The Scarlet Pimpernel -- variant or even pirated edition -- which sells, going forward, for a while at least, or maybe not... experimentation and not a little chaos... no less but no more than digital's Age of Incunabula, then...


In the meantime, my personal "typical user's" pattern for doing recreational reading now has become as follows:

      #1) try the iPhone's "Stanza" app / read Project Gutenberg's version of the text I'm seeking there; then,

      #2) ditto the iPhone's "Classics" app / if they have the text;

      #3) GoogleBooks on the iPhone or laptop or desktop / my "my library" there is getting huge;

      #4) Gallica and the many others online, if I think a given digital text may be out there;

      -- and then, possibly,

      #5) a book library / I happen to live near several of the greats;

      #6) Amazon / cheapest and gratia-indexing etc. most convenient; and finally, perhaps,

      #7) a bookstore / for browsing, still a pleasure, and sometimes even for an impulse-buy.

If that is a priorities list which is already or is becoming truly typical, it seems to me that the lower on the list your particular enterprise or institution appears the more trouble you are in -- although there is some boundary-spanning functionality there, too, so perhaps a bookstore can get linked from Stanza or from GoogleBooks, and a library can develop and offer some service supplemental to "Classics" or to "Gallica".

But those lowest on the list will linger. It's a user's list, now maybe just for a few but increasingly I believe for many more users in the future. And any institution, anywhere, commercial or otherwise, has to consider the users.

Happy Ides of March,


Jack Kessler,




      FYI France (sm)(tm) e-journal                   ISSN 1071-5916
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