Google won a huge victory on Thursday when District Court Judge Denny Chin ruled that Google's massive book-scanning project, Google Books, was protected by the doctrine of "fair use" against charges of copyright infringement. The main plaintiff, the Authors Guild, announced it would appeal the ruling, but the consensus reaction of academics and tech pundits came down in support of the decision.
Chin's explanation of his ruling certainly didn't leave much wiggle room.
"[Fair use] doctrine permits the fair use of copyrighted works 'to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts,"'" wrote Chin.
In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.
Judge Chin provided no data to support his assertion that Google Books surely results in additional book sales, but that's just a quibble. The decision is clearly a big win for Google -- another successful step forward in the search giant's quest to "organize the world's information."
Viewed in isolation, there is probably little reason to be alarmed about Google's crushing victory over the Authors Guild. But viewed in the context of other recent news developments relating to Google, there is definitely cause for some concern. Because Google isn't blowing smoke with its organize-all-the-information manifest destiny. The company continues to make major moves aimed at consolidating access to all of our data, and it is ruffling some serious feathers in the process. This week, authors went down in defeat. Last week, it was the freedom-loving YouTube masses. Next week? Advertisers?
Can Google be stopped? If the Google Books decision is an omen, probably not. But should it be stopped? That's the question!
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In mid-September, USA Today reported that Google was cooking up a plan to replace cookies as the primary way advertisers track people across the Web. Details on the "cookieless tracking" scheme are sketchy, but the bottom line is that a successful rollout of such a plan would represent a vast transfer in power from advertisers to Google.
VentureBeat summarized the enormous implications.
Google has the world’s most popular mobile operating system. The world’s most popular search engine. One of the world’s most popular social networks, in Google+. The biggest ad exchange in the world. And, yes, the world’s most popular browser.
Imagine, for instance, if Google introduced [cookieless tracking] for every Android device. And then included it in Chrome. And then extended it to the Google.com searches, and Google+ social networking.
When ad exchanges and major advertisers see all that, they get worried that putting control of ad tracking into Google’s hands — which of course supplies all the data about ad effectiveness — would be just too much power, too concentrated.
“Dependence on Google alone for user IDs would not only give Google monopoly power in display, mobile and video in addition to search, it would also give it total control of advertiser data,” said Michael Greene, director of research and marketing strategy at AudienceScience.
Cookieless tracking is a natural response to the ongoing migration to mobile, where cookies are far less effective for tracking users. But it's also a potent way for Google to profit further from what it already knows about the users of its own services, points out privacy expert Chris Hoofnagle.
"Google, through authenticated services, knows who you are," says Hoofnagle, who directs the Berkeley Center for Law & Technology's privacy programs. "So they could leverage that to positively identify the user internally, and then pass a token to third parties with attributes about the user for targeting advertising."
And that, in turn, probably explains why Google decided to stir up a hornet's nest last week, when the company started requiring anyone who wanted to comment on a YouTube video to first log in to a Google+ account.
The new hoop to jump through provoked massive resentment, driving one of YouTube's co-founders to profanity, and inspiring an angry young musician to record a catchy, very not-safe-for-work, protest anthem.
Why would Google do this? Google+ has long been regarded as Google's (unsuccessful) attempt to outflank Facebook, and one popular theme is that Google was trying to breathe life into a corpse by forcing YouTube users to join the moribund social network. One prominent YouTube celebrity, the "mathemusician" Vi Hart, assumed that "Google is trying to re-animate a failed platform by leeching off of a successful one, despite that the failed platform failed because it is bad, and more users are not going to make it less bad."
But the story is more complicated than that. The real agenda must be to associate as much activity on Google platforms with authenticated identities as possible. YouTube is another major ad-delivery platform. If Google can start tying unique identities to every user interaction with YouTube, the company will have accomplished yet another expansion of Google's ...
(I wanted to use the word "panopticon" there, but I feel like I've been overusing that term lately.)
... vast database of information about user behavior.
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A month ago I sat in my car in the South Bay town of Fremont, Calif., contemplating the drive back to Berkeley. Traffic had been awful on the ride down 880 to get to my appointment, and I wasn't relishing returning via the same route.
I pulled out my iPhone and clicked on the Google Now button. Google Now is an integrated interface to all of Google's services that I have found increasingly indispensable in the last few months. Google Now knows where I live and it automatically calculates return routes home from wherever I might be. Google Now immediately informed me that an alternate route to 880 -- although longer in total mileage -- would get me home 15 minutes faster.
We've been using our GPS/Maps enabled phones to do things like this for several years now, but Google Now specializes in anticipating what I might need. I didn't look for directions. I just opened the app and Google assumed that I might want directions. Google also keeps an eye on my Gmail accounts -- including the tracking numbers included in emails from UPS and FedEx; without prompting, it notified me that a package from FedEx was due to arrive that afternoon. That news influenced my decision to go straight home rather than to the grocery store first, in case I needed to sign for delivery.
Google Now represents the essence of everything that Google has always dreamed of providing users -- it's the embryonic Star Trek computer so memorably described by Farhad Manjoo. I'm finding it extraordinarily useful, especially when I'm traveling, and it seems to always be getting more adept. Just today, after updating my apps, it informed me that it was now (finally) ready to send push notifications on the iOS platform. Now I can use it to set reminders and have it alert me about upcoming packages or airline check-in times without needing to call up the app first.
As John Battelle wrote in October: Google Now is a "tangible expression of Google’s pivot from being a company that answers search queries, to being a company that anticipates your most important questions in real time, and answers them before you ask.
I love it. I love both Google Now's current utility and its potential. I freely give it access to all my information because it increases my efficiency and comfort. Indeed, the more Google services I use, the better it performs. I am a willing participant in the Google information ecology, because it makes my smartphone work better and better.
Of course, I know that ultimately all this information will be employed to more exquisitely target ads and other revenue-generating services at me. I can't blithely dismiss the possibility of outright Google-directed behavior modification. Google Now will be alerting me to merchandise sales and happy hour specials and discounts on meals at the restaurants I happen to be walking or driving by. Google Now will know my search history, what books I am looking at via Google Books or videos I am watching on YouTube.
The Google Books victory is symbolic. Most of us recognize Google Books as a good thing, even though it was indisputably a massive act of willful copyright infringement. The "public benefit" is obvious. Likewise, in my personal domain, I recognize that I am surrendering any pretense of privacy by embracing the full panoply of Google services. But the private benefit is too obvious.
Therefore, Google cannot be stopped. Even if we wanted to. Which, I admit, I kind of don't.