L. Gordon Crovits writes in the Wall Street Journal that the recent compromise between Google and the book industry is the former's concession that, contra its motivating spirit, information is not always free.
Copyright is critical to provide property rights in books, music and other forms of intellectual property, contrary to those who claim that somehow everything must be free just because it's on the Web. But content owners also belatedly realize that simply suing consumers who find new, convenient ways to access content online is not as good as finding new business models to profit from customer interest that technology makes possible.
Under pressure from all sides, Congress and the U.S. Copyright Office had dithered about so-called orphan works, books whose owners or authors are hard to find. Congress toyed with a test of requiring payment after a "reasonably diligent search" for the owners.
This vague standard "would have been a classic Washington solution to the problem," Lawrence Lessig said in an interview, "meaning it would have been a nightmare." Mr. Lessig, a Stanford law professor and author of several books on copyright, says the registry is a huge breakthrough because it ends uncertainty. "Establishing who owns what is real progress," he says. "An efficient solution can be found once there is settling of property rights."
Google still claims it has the right to index content on the Web for its search engine. Exactly what snippet or excerpt goes too far for fair use in other cases remains unclear. Under the registry it will set up, the owners of the intellectual property can set prices for book downloads, have a Google algorithm set prices, or refuse access altogether.
The market solution means Google will now offer millions of books for sale, sharing the proceeds with publishers and authors. Books long out of print will be searchable and available for a fee.
This is a sharp break from Google's approach of gaining access to content such as newspaper and magazine articles simply by providing advertising-supported links, though the company warns not to read too much into this precedent of agreeing to make direct payments for content or encouraging its users to pay for content online.
This shift by Google led Peter Osnos, founder of PublicAffairs books, to wonder if the book settlement could have lessons for other owners of content. "Google has now conceded, with a very large payment, that information is not free," Mr. Osnos wrote for the Century Foundation. "This leads to an obvious, critical question: Why aren't newspapers and news magazines demanding payment for use of their stories on Google and other search engines? Why are they not getting a significant slice of the advertising revenues generated by use of their stories via Google?"
Sometimes, maybe it's best when private entities are forced to figure out ways to deal with each other.