Fungible Convictions

I have to admit I’m biased in favor of Google. I have friends who work in both the Cambridge and Mountain View offices. I’ve tried, and provided feedback on, every beta Google has produced. I worked for a group trying to get funding from its philanthropic arm, Google.org. And every time I hear CEO Eric Schmidt speak at a conference, he strikes me as one of the most intelligent, well-versed, sober, geektastic corporate leaders I can think of. (If you have an hour, this interview with the New Yorker’s Ken Auletta is definitely worth watching:

.)

So perhaps I’m biased when I don’t see a problem with Google archiving so-called orphan works, publications that have been abandoned by both author and publisher, are out of print, and are effectively if not technically out of copyright. I don’t see a problem with making available works that no one can easily see/acquire, that no one is promoting, and that no one is making money from—but that may, and often do, still have great value.

I’m also biased, however, in favor of one of the great archival minds of our age, Robert Darnton:

Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database.

The settlement, “takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,” said Robert Darnton, head of the Harvard University library system. “Google will be a monopoly.”

The question for Darnton and others, though, is: is this a bad thing? Google does not somehow become the exclusive copyright holder to orphan works. Other groups and companies are welcome to do the same thing and to also make money from it. And this particular monopoly is, contradictorily, limited and temporary. There will be well-funded competitors. There’s no indication that Google wishes to charge for access—it’s fair to assume Google will monetize the collection through targeted advertising as it does with search results and within Gmail. The original orphan works don’t disappear.

So I don’t begrudge Google its ambition. While experience shows that powerful groups try to control archives as a way of shaping history, experience also shows that seemingly dominant businesses, such as General Motors and Microsoft, are inevitably outflanked. And most important, as Schmidt explains in the Auletta interview, Google thrives only in so far as it is trusted. It’s a business that deals in user data, and that demands trust. Trust broken once is trust lost, so it’s in Google interest to welcome competing ideas, to accept criticism, and to be, above all, open.

From Slashdot:

I Don’t Believe in Imaginary Property writes:

“Oprah Winfrey, or to be more precise, Oprah’s Book Club, is being sued by the inventor/patent attorney Scott C. Harris for infringing upon his patent for ‘Enhancing Touch and Feel on the Internet.’ So Oprah’s Book Club is now one of many people and entities being sued over this patent because they allow people to view part, but not all, of a book online before purchasing it. Mr. Harris also sued Google Books for infringing upon this patent. He actually was fired from his position as partner at Fish & Richardson for that, because Google is a client of that law firm and they had conflict of interest rules to uphold.”

It would be entertaining to see Oprah give very wide and mainstream publicity to the abuses enabled by our current patent system.

Indeed. She’s still one of the most influential people in the country—I wonder if her audience is getting close enough to a baseline tech-savviness such that they’d understand the implications of Harris’ lawsuit or the significance of Apple’s announcement yesterday that they’re at last removing digital rights management from songs sold on iTunes. I’d wager if Oprah discussed these legal issues on her show, or perhaps invited Eric Schmidt and record company execs and a few college students, that groups like the Electronic Frontier Foundation would have a banner fundraising year.

Update: The Federal Trade Commission will look at DRM issues soon, including soliciting of public opinion in a town hall setting. To folks new to these issues, it might not seem like digital rights management (software that controls how/when you use other software, such as code in an .mp3 that keeps you from playing that .mp3 on more than two devices) and copyright are explicitly related. But they both can abuse the intended purpose of intellectual property law: to encourage innovation, but not to guarantee inventors (nowadays companies) a permanent income from their inventions.

BoingBoing blogged (here and here) about editor Teresa Nielsen Hayden’s excellent argument that as much as people think publishing is bestseller-driven, the facts don’t bear it out. Publishing is and has always been “okayseller”-driven:

Bestsellers aren’t the whole of publishing. Every year, we publish a great many okaysellers. You guys buy them because they look interesting, or because a friend has recommended them, or because you liked another book by that author. Marketing push only goes so far.

A quick test: raise your hand if you only buy bestsellers. No? Okay, raise your hand if the majority of your book purchases are current bestsellers. Right. Now raise your hand if your bookbuying decisions are based on marketing buzz. If you still aren’t raising your hand, you’re a normal book-buying reader, and the Wall Street Journal is chin-deep in hogwash on this point.

Nielsen Hayden goes on to suggest that anyone who recycles the best-seller nugget “really needs to get out more.” Hear, hear.

What BoingBoing and all but a couple of Nielsen Hayden’s commenters don’t touch upon is how conventional wisdom has come to be that publishing is a bestseller, winner-take-all industry.

Put plainly, the laws of scarcity mean only a handful of books get mentioned. Five major publishers compete for shelf-space at two major bookstore chains while pushing for reviews in the ever-fewer literary pages of the newspapers owned by ever-fewer owners. And, as on the Internet, conversation is what drives interest, so reviewers review the same books in order to create a dialogue. This is the case, at least, for fiction. People come to believe blockbusters are what drive the publishing industry because blockbusters are all they hear mentioned.

For trade books in general, though, commenter Larry Brennan makes the salient point when he asks, “What’s the correlation between heavy retail book buyers (say 20+ titles per year) and buyers of best-sellers?” Intuition suggests that there is none, that people who buy many books are not the same as those who buy bestsellers; moreover, those who buy one bestseller don’t necessarily buy another bestseller: the pool of buyers is different. As contradictory as it sounds, bestsellers are statistical anomalies. Without an engineered system of scarcity to guarantee a minimum of success, setting out to publish bestsellers would be a disastrous business model.

Success is defined in different ways, of course. By traditional business standards, the publishing industry is probably healthier than it’s ever been. More product than ever, more money moving in and out, and more technological innovation since the invention of the offset press.

But if the ups and downs of the major players are all that get attention, then the industry looks dysfunctional indeed.

There are two ways a book can die: every copy can disappear, or one irreplaceable copy does.

After many brief searches in the last month and one concerted hour-long search this weekend, I finally gave up hope of ever finding my copy of Kenneth Burke’s The Rhetoric of Religion: Studies in Logology. Not exactly a heart-pounding title, but the book was central to my religious development from a lapsed Catholic to a faithful Orthodox Christian. I had read traditional introductory books to Orthodoxy by Kalistos Ware and Paul Evdokimov, but the Rhetoric of Religion was a rhetorical studies book, not religious in instruction at all. I’d owned it since a rhetoric class in college, when I’d just skimmed it as required reading. But three years later it became the linchpin to my conversion. I remember coming away from the religiously-disinterested Burke’s work thinking language, religious belief, and human nature were all wrapped up and that Burke’s study of the creation myth and the Fall were imperatives practically built into language, which happens to be a key component to Orthodox Christianity, that belief happens in the realm of language and that deification, to use a laden Orthodox term, happens as we accept that realm’s limitations.

My copy of the Rhetoric of Religion—the chapter on Genesis at least—had a lot of marginalia. It was a record of my thoughts at a key part of my life. Underlines, paragraph-length questions, long bars I use to highlight favorite passages, all of it unique to a week in my life in 2003. And now that I’ve lost the book, I’ve lost the record. I mourn it.

The only physical thing I can compare this to, the only thing that has that combination of other’s thoughts and one’s own time-sensitive interpretation, is the loss of a photograph. I’m reminded of my mother’s story about a roll of photos she took minutes after my birth. Taken minutes after labor, taken by my mother herself with the SLR that’s now mine years later, taken with me all gross and brand-new and not even whisked off yet to the nursery. . . .

The developer lost the roll. All twenty four pictures.

When she talks about this, my mother has this look on her face like she’s remembering someone who died too young, a mix of low-key anger and acceptance that memory is too frail, and would be even without the physical aid. That’s how I feel about my book. It might have been lost in my move last year. I might have accidentally put it in a box of books to give away. Who knows. My life will move forward identically as if it were still on my shelf. But I’d really rather have the book back.