In a recent posting at O’Reilly Radar, Linda Stone discusses recent comments by Brewster Kahle and Robert Darnton on the Google Book Search Settlement. This is especially valuable for its talk about the orphan books problem, discussed by Kahle, as Stone reports, and in comments by Thomas Lord and Tim O’Reilly. I’m excerpting this interchange here. About Kahle’s posting, Stone says that he “focused on the plight of ‘orphan works’ – that vast number of books that are still under copyright but whose authors can no longer be found.”

Thomas Lord’s first comment — He says he’s thought much about the settlement:

My conclusion [around the time of the settlement] was that the big libraries, like Harvard, had made a bad deal — they didn’t understand the tech well enough and Google basically not only steamrollered them but implicated them in the potentially massive infringement case.

Basically, Google should have, indeed, paid for scanning and building the databases – but the ownership of those databases should have remained entirely with the libraries … The Writer’s Guild caved pretty easy and pretty early but legal pressure can still be brought to bear on Google. They can give up their private databases back to the libraries that properly should own them in the first place.

Tim O’Reilly’s comment on the article, and especially on Lord’s comment:

I agree with Tom’s analysis. (See my old post: Book search should work like web search [2006]). And I do agree with Brewster’s concern that this settlement will derail the kind of reform that would have solved this problem far more effectively. That’s still my preferred solution.

That being said, the tone of both Brewster’s comments and Darnton’s, implies that Google was up to some kind of skulduggery here. That’s unfair. Should they have stood up on principle to the Author’s Guild and the AAP? Absolutely, yes. But it’s the AG and the AAP who should be singled out for censure. … From conversations with people at Google, I believe that they do in fact continue to believe in real solutions to the orphaned works problem, and that demonizing them doesn’t do any of us any good.

The fact is, that Google made a massive investment to digitize these books in the first place. No one else was making the effort … In short, we’re comparing a flawed real world outcome with an “if wishes were horses” outcome that wasn’t in the cards. … Barring change to copyright law (and yes, we need that), Google has at least created digital copies of millions of books that were not otherwise available at all. Make those useful enough and valuable enough, and I guarantee there will be pressure to change the law so that others can profit too. …

Google Book Search was an important step forward in building an ebook ecosystem. I wish this settlement hadn’t happened, and that Google had held out for the win on the idea that search is fair use. And I wish that Google had taken the road that Tom outlined. … But they put hundreds of millions of dollars into a project that no one else wanted to touch. And frankly, I think we’re better off, even with this flawed settlement, than if Google had never done this in the first place.

Finally, I’ll point out that there is more competition in ebooks today than at any time in the past. Any claim that we’re on the verge of a huge Google monopoly, such as Darnton claims, is so far from the truth as to be laughable. Google is one of many contenders in an exploding marketplace.

Thomas Lord’s reply to O’Reilly:

… In the spirit of understanding things: you praise Google, I don’t. We’re better off those books having been scanned (I strongly agree) – I don’t like the way they bull-in-china-shop worked this. I think there’s a deep and lasting threat here that they need to fix if they want to “not be evil.”