Robert Darnton: The Library -- Three Jermiads

The Library: Three Jeremiads
Robert Darnton
The New York Review of Books

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Google represents the ultimate in business plans. By controlling access to information, it has made billions, which it is now investing in the control of the information itself. What began as Google Book Search is therefore becoming the largest library and book business in the world. Like all commercial enterprises, Google’s primary responsibility is to make money for its shareholders. Libraries exist to get books to readers—books and other forms of knowledge and entertainment, provided for free. The fundamental incompatibility of purpose between libraries and Google Book Search might be mitigated if Google could offer libraries access to its digitized database of books on reasonable terms. But the terms are embodied in a 368-page document known as the “settlement,” which is meant to resolve another conflict: the suit brought against Google by authors and publishers for alleged infringement of their copyrights.

Despite its enormous complexity, the settlement comes down to an agreement about how to divide a pie—the profits to be produced by Google Book Search: 37 percent will go to Google, 63 percent to the authors and publishers. And the libraries? They are not partners to the agreement, but many of them have provided, free of charge, the books that Google has digitized. They are being asked to buy back access to those books along with those of their sister libraries, in digitized form, for an “institutional subscription” price, which could escalate as disastrously as the price of journals. The subscription price will be set by a Book Rights Registry, which will represent the authors and publishers who have an interest in price increases. Libraries therefore fear what they call “cocaine pricing”—a strategy of beginning at a low rate and then, when customers are hooked, ratcheting up the price as high as it will go.

To become effective, the settlement must be approved by the district court in the Southern Federal District of New York. The Department of Justice has filed two memoranda with the court that raise the possibility, indeed the likelihood, that the settlement could give Google such an advantage over potential competitors as to violate antitrust laws. But the most important issue looming over the legal debate is one of public policy. Do we want to settle copyright questions by private litigation? And do we want to commercialize access to knowledge?

I hope that the answer to those questions will lead to my happy ending: a National Digital Library—or a Digital Public Library of America (DPLA), as some prefer to call it. Google demonstrated the possibility of transforming the intellectual riches of our libraries, books lying inert and underused on shelves, into an electronic database that could be tapped by anyone anywhere at any time. Why not adapt its formula for success to the public good—a digital library composed of virtually all the books in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the world?

To dismiss this goal as naive or utopian would be to ignore digital projects that have proven their worth and feasibility throughout the last twenty years. All major research libraries have digitized parts of their collections. Since 1995 the Digital Library Federation has worked to combine their catalogues or “metadata” into a general network. More ambitious enterprises such as the Internet Archive, Knowledge Commons, and Public.Resource .Org have attempted digitization on a larger scale. They may be dwarfed by Google, but several countries are now determined to out-Google Google by scanning the entire contents of their national libraries.

In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.

If these countries can create national digital libraries, why can’t the United States? Because of the cost, some would argue. Far more works exist in English than in Dutch or Japanese, and the Library of Congress alone contains 30 million volumes. Estimates of the cost of digitizing one page vary enormously, from ten cents (the figure cited by Brewster Kahle, who has digitized over a million books for the Internet Archive) to ten dollars, depending on the technology and the required quality. But it should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.

The greatest obstacle is legal, not financial. Presumably, the DPLA would exclude books currently being marketed, but it would include millions of books that are out of print yet covered by copyright, especially those published between 1923 and 1964, a period when copyright coverage is most obscure, owing to the proliferation of “orphans”—books whose copyright holders have not been located. Congress would have to pass legislation to protect the DPLA from litigation concerning copyrighted, out-of-print books. The rights holders of those books would have to be compensated, yet many of them, especially among academic authors, might be willing to forgo compensation in order to give their books new life and greater diffusion in digitized form. Several authors protested against the commercial character of Google Book Search and expressed their readiness to make their work available free of charge in memoranda filed with the New York District Court.

Perhaps even Google itself could be enlisted in the cause. It has digitized about two million books in the public domain. It could turn them over to the DPLA as the foundation of a collection that would grow to include more recent books—at first those from the problematic period of 1923–1964, then those made available by their rights holders. Google would lose nothing by this generosity; each digitized book that it made available could, if other donors agree, be identified as a contribution from Google; and it might win admiration for its public-spiritedness.

Even if Google refused to cooperate, a coalition of foundations could provide enough to finance the DPLA, and a coalition of research libraries could provide the books. By working systematically through their holdings, a great collection could be formed. It would conform to the highest standards in its bibliographical apparatus, its scanning, its editorial decisions, and its commitment to preservation for the use of future generations.

Should the Google Book Search agreement not be upheld by the court, its unraveling would come at an extraordinary moment in the development of an information society. We have now reached a period of fluidity, uncertainty, and opportunity. Things have come undone, and they can be put together in new ways, subordinating private profit to the public good and providing everyone with access to a commonwealth of culture.

Would a Digital Public Library of America solve all the other problems—the inflation of journal prices, the economics of scholarly publishing, the unbalanced budgets of libraries, and the barriers to the careers of young scholars? No. Instead, it would open the way to a general transformation of the landscape in what we now call the information society. Rather than better business plans (not that they don’t matter), we need a new ecology, one based on the public good instead of private gain. This may not be a satisfactory conclusion. It’s not an answer to the problem of sustainability. It’s an appeal to change the system.

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On the Media: Suspicionless Laptop Searches at the Border

Suspicionless Laptop Searches at the Border
On the Media (NPR)

... the American Civil Liberties Union and two other groups filed a lawsuit against the Department of Homeland Security over its suspicionless border searches of electronic devices. While the government considers its authority to search laptops and PDAs to be consistent with its power over briefcases and backpacks, ACLU attorney Catherine Crump says that the nature of information on a personal laptop can make these searches unconstitutionally intrusive.

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Common Dreams: US Sues to Close Safety Law-Violating Massey Mine in Ky.

US Sues to Close Safety Law-Violating Massey Mine in Ky.
Common Dreams

CHARLESTON, W.Va. - The US Department of Labor filed an unprecedented federal lawsuit yesterday seeking to close a mine operated by troubled coal producer Massey Energy Co. for continually violating safety laws.

The Labor Department has never sought an injunction to protect coal miners before, but is considering several more lawsuits, Patricia Smith, the agency's solicitor, said during a conference call.

Yesterday's lawsuit marks the latest step by the Labor Department's Mine Safety and Health Administration to crack down on dangerous mines. Massey has 21 days to respond.

The agency has been targeting mines with poor safety records since an explosion killed 29 miners at Massey's Upper Big Branch mine in West Virginia on April 5. The blast was the deadliest at a US coal mine in 40 years and is the subject of criminal and civil investigations.

The lawsuit seeks to close Massey subsidiary Freedom Energy's Mine Number 1 in Pike County, Ky., until the company fixes violations and comes up with a way to prevent them in the future. The lawsuit asks that employees continue to be paid while the mine is offline.

"This is the mine that we believe is one accident away from a possible tragedy,'' Smith said.

MSHA said it has issued more than 2,000 citations and orders closing sections of the mine since July 2008 and injuries have been rising, though Smith said the government doesn't trust Massey's figures.

"We're not just looking at the injury rates, especially in this situation. My understanding is that Massey reported to its own shareholders that it underreports injury rates by approximately 37 percent,'' she said.

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Democracy Now: Mine Workers Union and Families Sue to Open Federal Probe into Deadly Massey Coal Mine Explosion

Mine Workers Union and Families Sue to Open Federal Probe into Deadly Massey Coal Mine Explosion
Democracy Now

Just a few weeks before the April 20th explosion on BP’s Deepwater Horizon rig in the Gulf, twenty-nine coal miners died after an explosion at Massey Energy’s Upper Big Branch Mine in West Virginia. Although the Mine Safety and Health Administration has launched an investigation into the disaster, unlike the open federal investigation into the BP oil spill, the probe into Massey is taking place entirely behind closed doors. The United Mine Workers of America and families of victims killed in the West Virginia coal mine explosion recently filed suit in federal court to open up the federal investigation. We speak to journalist Jeff Biggers.

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Bill Moyers & Michael Winship: Chevron's "Crude" Attempt to Suppress Free Speech

Chevron's "Crude" Attempt to Suppress Free Speech
by Bill Moyers & Michael Winship
Bill Moyers Journal



Even as headlines and broadcast news are dominated by BP's fire-ravaged, sunken offshore rig and the ruptured well gushing a reported 210,000 gallons of oil per day into the Gulf of Mexico, there's another important story involving Big Oil and pollution - one that shatters not only the environment but the essential First Amendment right of journalists to tell truth and shame the devil.

(Have you read, by the way, that after the surviving, dazed and frightened workers were evacuated from that burning platform, they were met by lawyers from the drilling giant Transocean with forms to sign stating they had not been injured and had no first-hand knowledge of what had happened?! So much for the corporate soul.)

But our story is about another petrochemical giant - Chevron - and a major threat to independent journalism. In New York last Thursday, Federal Judge Lewis A. Kaplan ordered documentary producer and director Joe Berlinger to turn over to Chevron more than 600 hours of raw footage used to create a film titled CRUDE: THE REAL PRICE OF OIL.

Released last year, it's the story of how 30,000 Ecuadorians rose up to challenge the pollution of their bodies, livestock, rivers and wells from Texaco's drilling for oil there, a rainforest disaster that has been described as the Amazon's Chernobyl. When Chevron acquired Texaco in 2001 and attempted to dismiss claims that it was now responsible, the indigenous people and their lawyers fought back in court.

Some of the issues and nuances of Berlinger's case are admittedly complex, but they all boil down to this: Chevron is trying to avoid responsibility and hopes to find in the unused footage - material the filmmaker did not utilize in the final version of his documentary - evidence helpful to the company in fending off potential damages of $27.3 billion.

This is a serious matter for reporters, filmmakers and frankly, everyone else. Tough, investigative reporting without fear or favor - already under siege by severe cutbacks and the shutdown of newspapers and other media outlets - is vital to the public awareness and understanding essential to a democracy. As Michael Moore put it, "The chilling effect of this is, [to] someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they're working for."

In an open letter on Joe Berlinger's behalf, signed by many in the non-fiction film business (including the two of us), the Independent Documentary Association described Chevron's case as a "fishing expedition" and wrote that, "At the heart of journalism lies the trust between the interviewer and his or her subject. Individuals who agree to be interviewed by the news media are often putting themselves at great risk, especially in the case of television news and documentary film where the subject's identity and voice are presented in the final report.

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John Schwartz: Courts as Battlefields in Climate Fights

(Courtesy of Russell Williamson)

Courts as Battlefields in Climate Fights
by John Schwartz
The New York Times

Tiny Kivalina, Alaska, does not have a hotel, a restaurant or a movie theater. But it has a very big lawsuit that might affect the way the nation deals with climate change.

Kivalina, an Inupiat Eskimo village of 400 perched on a barrier island north of the Arctic Circle, is accusing two dozen fuel and utility companies of helping to cause the climate change that it says is accelerating the island’s erosion.

Blocks of sea ice used to protect the town’s fragile coast from October on, but “we don’t have buildup right now, and it is January,” said Janet Mitchell, Kivalina’s administrator. “We live in anxiety during high-winds seasons.”

The village wants the companies, including Exxon, Mobil, Shell Oil, and many others, to pay the costs of relocating to the mainland, which could amount to as much as $400 million.

The case is one of three major lawsuits filed by environmental groups, private lawyers and state officials around the nation against big producers of heat-trapping gases. And though the village faces a difficult battle, the cases are gathering steam.

In recent months, two federal appeals courts reversed decisions by federal district courts to dismiss climate-change lawsuits, allowing the cases to go forward. In Connecticut, environmental lawyers joined forces with attorneys general of eight states and the City of New York seeking a court order to reduce greenhouse gas emissions.

In Mississippi, Gulf Coast property owners claim that industry-produced emissions that contribute to climate change increased the potency of Hurricane Katrina in 2005.

And although a federal judge in Oakland, Calif., dismissed the Kivalina suit in October, the village is appealing the decision.

Tracy D. Hester, who has taught a course in climate lawsuits at the University of Houston law school, said that with the issues “very much in play” in three circuits of the federal court system, “the game pieces are being set for eventual Supreme Court review.”

The cases need not even get that far to have an impact, said James E. Tierney, the director of the National State Attorneys General program at Columbia Law School. Kivalina alleged in its complaint that the industry conspired “to suppress the awareness of the link” between emissions and climate change through “front groups, fake citizens organizations and bogus scientific bodies.”

That claim echoes those in suits against the tobacco industry that ultimately led to industry settlements and increased government regulation.

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