Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media

Selection from Cites & Insights 9, Number 8: July 2009


On Privatization

Privatization: The noun formed from privatize.

Privatize. Merriam-Webster’s Tenth Collegiate keeps it simple: “to make private; esp. to change (as a business or industry) from public to private control or ownership.”

Wiktionary defines privatization as “The transfer of a company or organization from government to private ownership and control.” Privatize? “To release government control of a business or industry to private industry.”

Wordnet defines privatize as “change from governmental to private control or ownership.” adds a second meaning: “The transition from a publicly traded and owned company to a company which is privately owned and no longer trades publicly on a stock exchange. When a publicly traded company becomes private, investors can no longer purchase a stake in that company.”

Other than that secondary meaning, it all seems fairly straightforward, doesn’t it? When you change a business or industry—say rail travel, postal service and the like—from public ownership to private ownership (or maybe control), that’s privatization.

Paul Starr doesn’t think it’s simple. His paper “The meaning of privatization” in the Yale Law and Policy Review begins “Privatization is a fuzzy concept that evokes sharp political reactions.” Indeed, he manages to bring up a whole bunch of fuzzy forms: the “privatization of emotion,” for example. One note may be relevant to this discussion:

Privatization can also signify another kind of withdrawal from the whole to the part: an appropriation by an individual or a particular group of some good formerly available to the entire public or community.

Starr offers two primary meanings for privatization in late-20th-century political discussion:

(1) any shift of activities or functions from the state to the private sector; and, more specifically, (2) any shift of the production of goods and services from public to private.

He clearly finds the second, narrower definition more useful. (Among other things, converting from the US Post Office, a government organization, to USPS, a public corporation, was not privatization in that narrower sense.)

I could go on—but let’s stop with the Universal Source of Wisdom & Truth. Here’s what Wikipedia has to say in the first paragraph on Privatization, before covering the stock-company definition (and a related situation, converting a mutual or cooperative to a stock company):

Privatization is the incidence or process of transferring ownership of a business, enterprise, agency or public service from the public sector (government) to the private sector (business). In a broader sense, privatization refers to transfer of any government function to the private sector including governmental functions like revenue collection and law enforcement.

Dr. H. Dumpty’s Theory of Language

As far as I can determine, the mainstream version of American (and English in general) has a fairly straightforward meaning for privatization—even after it’s been enhanced by lawyers.

There is, of course, an alternate view, as expounded by a learned linguist in a book by the noted logician Charles Dodgson (published under a pseudonym):

`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean—neither more nor less.'

`The question is,' said Alice, `whether you can make words mean so many different things.'

`The question is,' said Humpty Dumpty, `which is to be master—that's all.'

Consider me the old-fashioned Alice in this scenario—and a surprising number of people as proponents of the H. Dumpty theory, that words mean whatever you assert they mean.

In DumptyWorld, it’s fair to say that the Google Library Project privatizes the collections of publicly-owned libraries—for, after all, each of those words means whatever you choose it to mean. (“Privatizatizes the collections of publicly-owned libraries” could just as easily mean “Offers jam tomorrow and jam yesterday, but no jam today”: The question is which is to be master—that’s all.) In traditional English, I believe it’s not only unfair, it’s an abuse of the language.


Siva Vaidhyanathan has been using “privatization” to describe the Google Library Project since at least 2006. I have never found the usage reasonable, nor his arguments for it convincing. Of course, he’s certainly not the only academic to use “privatization” loosely, either with regard to Google or in other cases.

I’ll posit a definition for this NewSpeak version of “privatization”:

Privatization: Creating something of value in the private sector based on public resources, without destructive or exclusive use of those public resources, that may preclude something similar being created in the public sector in the future, even though no such thing currently exists.

Brewster Kahle has used a NewSpeak vesion of “privatization” since at least 2007. I had this to say in a Walt at random post on October 22, 2007:

First, there’s “privatization.”

Here’s the quote (from an article that’s appeared in NYT and IHT):

“Google could be privatizing the library system by offering a large, but private interface to millions of books,” Kahle said.

Brewster Kahle’s certainly not the only one to misuse the language this way–just the latest.

I’m not in love with Google by any means. I think OCA is a great idea (although I wonder where the “alliance” has gone, given Yahoo’s almost-total silence and Microsoft’s diverging effort).

But “privatizing the library system” or, which I’ve also read, “privatizing the public domain”–I’m sorry, but horsepucky.

If Google negotiated exclusive contracts, maybe.

Otherwise, that language is like saying that, if I check a book out from my library that happens to be in the public domain, scan it, and return it to the library, I’ve “privatized” the book.

Google is borrowing books from libraries (in large quantities thanks to special arrangements), scanning those books, and returning them to the libraries with the promise that the books won’t be damaged. Its deals are nonexclusive. Google’s scan does not in any way modify the terms under which the book itself can be used.

Google Book Search absolutely expands findability for books and in no way restricts anyone else from building and maintaining book-search systems. Google Book Search for public domain absolutely expands access to the text within books, and in no way restricts anyone else from providing similar access. (For that matter, Google’s silly first-page “conditions” are suggestions for use of their PDFs, not legal restrictions.)

How can expansion be viewed as contraction? How can improved access be regarded as privatization?

Want to attack Google? Fine. But is it necessary to debase the English language to do so? Or does it just make a great soundbite?

When Karen Coyle used the same language in one of her many (generally very useful) posts about the proposed Google/AAP/AG settlement, I took exception, as part of Perspective: The Google Books Search Settlement (Cites & Insights 9:4, March 2009).

I planned to say nothing about the proposed settlement for several months after that special issue—probably until the settlement had been approved, modified or denied, or at least until we know more about things like pricing for access to the collection. Meanwhile, I have more than three dozen items flagged for review in a later discussion.

I still plan to hold off on another general commentary until the dust has settled—but Karen Coyle’s reaction to my comments makes the situation more interesting. Three months after Cites & Insights 9:4 appeared, Coyle wrote a detailed response in her blog. When I was able to devote time and attention, I responded to her post.

Her post—quoted in full and unchanged as feedback to Cites & Insights—follows, as does my later post and some of the comments on that post.

Walt Crawford should read the document

[Originally appeared as a May 10, 2009 post on Coyle’s InFormation. Specific link: 2009/05/walt-crawford-should-read-document.html. Links appear as underlined text.]

In his March, 2009 Cites & Insites, Walt Crawford does a roundup of comments on the Google/AAP settlement, and gets very agitated when reviewing some of my posts. I'm used to that. But agitation tends to cancel out reason, and Walt gets some things wrong that he might have understood better if he had kept a clear head.

In response to my criticism that Google is digitizing without regard to collection building, Walt says:

"I don’t know of any big academic library or public library that’s a single disciplinary collection—or, realistically, a set of well-curated collections."

I'd like to hear from academic librarians on this one. My understanding was that an academic library is INDEED a set of well-curated collections.


"I don’t remember public universities admitting to substantial costs in cooperating with Google."

What's the cost? Dan Greenstein estimated $1-2 per book. Cheap, but still considerable for a library scanning millions of books. The cost is primarily in staff time, shelving and reshelving books. Under this agreement, there is also the cost of meeting the security requirements that are imposed. (That's in Appendix D) These requirements, which are possibly quite reasonable, will have a greater cost than what most libraries do today for digital materials, and will be one of the primary reasons why some libraries do not contract to receive copies of the digitized items. (Note that some of the potential library partners are working hard to collaborate on the Hathi Trust, which does appear to meet the standards of the agreement; others, however, have decided that they will not attempt to store digital copies.)

In a post I argued that had libraries gone ahead and digitized their own collections (for the purposes of indexing and searching), that this probably would have been considered fair use.


"Well…this is not a judicial finding. I find it unfortunate that Google didn’t fight the good fight, and I think it will make things much harder for another commercial entity to attempt similar digitization and use—but I don’t see that library use of “their own materials” has changed in any way."

Not of their hard copy materials, but legal minds think that this changes the landscape for digitization and the use of digitized materials, even closing some options that might have been available before.

"The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world. It and BRR, which will also be a monopoly, will have considerable freedom to set prices and terms and conditions for Book Search’s commercial services.... If asked, the authors of orphan books in major research libraries might well prefer for their books to be available under Creative Commons licenses or put in the public domain so that fellow researchers could have greater access to them. The BRR will have an institutional bias against encouraging this or considering what terms of access most authors of books in the corpus would want." Pam Samuelson

And to my statement:

"The digitization of books by Google is a massive project that will result in the privatization of a public good: the contents of libraries. While the libraries will still be there, Google will have a de facto monopoly on the online version of their contents."

Walt first prefaces it with:

"I take issue with the very first sentence, as I’ve taken issue consistently with the same claim by others with even higher profiles than Coyle (who are even less likely to ever admit they could be mistaken)."

Well, it would have been nice if he had said who they are. But thanks for letting me know that you consider me a "lower profile" person, Walt. He goes on to say:

"Nonsense. Sheer, utter nonsense. The libraries and contents will still be there. OCA will still be there. I’m sorry, but this one just drives me nuts: It’s demonization of the worst kind and an abuse of the language."

Well, I'm not sure how this abuses language, but there is general agreement that Google gets a monopoly... at least on out-of-print books, which is the vast majority of books in libraries. (Not on public domain books, which is what the OCA digitizes, but anyone can digitize public domain books.) So although the libraries and their contents will still be there, and can be used in hard copy as they are today, no one but Google can digitize the in-copyright works without incurring liability. So "monopoly on online version of their contents" is a factual statement, if you understand that public domain is public domain. (Note, this settlement agreement is extremely complex, with some real zingers hidden in its 134 pages. It's not possible to cover it all in a blog post, so anyone who is interested really needs to read the document itself, painful as that process is.)

In terms of preservation and longevity concerns, Walt asks:

"Won’t the fully-participating libraries have digital copies? I can’t think of institutions with better longevity."

To begin with, only fully participating libraries will have digital copies, and we don't yet know how many libraries will choose that option. Other libraries, even those that are only allowing Google to digitize public domain books, do not get to keep copies of the digital files. (Not only that, public domain libraries that have been cooperating with Google have to delete all of their copies of the files that they hold today, as per this agreement. See Appendix B-3.) The only party with copies of all of the files will be Google.

There are statements in the settlement about what happens if Google "fails to meet the Require Library Services Requirement" or simply decides not to continue. I refer you to page 84 of the settlement, and hope that someone can make sense out of it. The way I read it, libraries can then engage a third-party provider, who will receive the files from Google.

The key thing here is that even in the event of the failure of Google, libraries are not allowed to make uses of their own scans, such as those that are permitted to Google by this settlement. The restriction to "computational uses" and some other minor uses stands, even in that eventuality.

When I say:

"Google should be required to carry all digital Books without discrimination and without liability."

Walt replies:

"You mean “all digital books that Google’s scanned”? I suspect Google wouldn’t argue with this."

That is exactly what I mean, and Google does indeed argue with it. As a matter of fact, the settlement only obligates Google to provide access to at least 85% of the books it scans. That "access" refers to the subscription service that will be available to libraries and other institutions. The settlement says:

"Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons." p.36

That's followed by an affirmation of the "value of the principle of freedom of expression," which I must say rings a bit hollow in this context. Google has to notify the Registry if it has excluded a book, and to provide a digital copy of that book to the Registry. The Registry can then seek out a third party to provide services for excluded books. Here, however, is James Grimmelmann's concern on that front:

"The second is that no one besides the Registry might ever find out that Google has chosen to de-list a book. If the Registry doesn’t or can’t engage a replacement for Google, the book would genuinely vanish from this new Library of Alexandria. Perhaps that should happen for some books, but decisions like that shouldn’t be made in secret. When Google choses to exclude a book for editorial reasons, it should be [R13] required to inform the copyright owner and the general public, not just the Registry. "

What might Google exclude? Perhaps very little, but at the ALA panel in Denver in January, 2009, Dan Clancy of Google gave an off-the-cuff remark that, as I recall, had the word "pornography" in it. Given the recent embarassment of Amazon when it had to face the fact that many of its best sellers are rather salacious in nature, I can imagine Google also developing concern about the visibility of the texts that make us uncomfortable.

There are a lot of legitimate reasons for concern about this proposed settlement. And I don't think that anything that I have said is "nonsense."

Responding as politely as possible

[Originally appeared May 23, 2009 on Walt at Random. Specific link Links appear as underlined text.]

Karen Coyle posted “Walt Crawford should read the document” on May 10, 2009 on her blog, Coyle’s InFormation.

Note two things about that sentence:

1.      It includes a direct link to Coyle’s post.

2.      I include the name of Coyle’s blog correctly, spelling and all.

Now consider the first paragraph of Coyle’s post, reproduced here exactly as it appears:

In his March, 2009 Cites & Insites, Walt Crawford does a roundup of comments on the Google/AAP settlement, and gets very agitated when reviewing some of my posts. I’m used to that. But agitation tends to cancel out reason, and Walt gets some things wrong that he might have understood better if he had kept a clear head.

No link—but then, how could there be a link, since there’s no such publication as “Cites & Insites”? (I don’t regard “Insites” as a word and assuredly would not use it for an ejournal.)

The March 2009 Cites & Insights (volume 9, number 4) consists of an essay on a proposed settlement involving Google, AAP, and the Authors Guild (not just Google and AAP). I regard that essay as considerably more than “a roundup of comments.”

I’m not sure whether Ms. Coyle is used to people in general getting agitated when reviewing her posts or whether that’s specifically aimed at me, but the last sentence is unquestionably aimed at somebody named Walt Crawford.

The suggestion that I was unable to reason clearly because I was so agitated by Ms. Coyle’s comments is either insulting or patronizing; your choice. It’s also false. (I checked the indexes for Cites & Insights. Except for March 2009, every time I’ve quoted or commented on Karen Coyle it’s been entirely positive comment–so I have to assume that other people get agitated by her comments. That’s not necessarily a bad thing.)

There is an ornithologist named Walt Crawford in the Midwest, director of the World Bird Sanctuary. In the overall scheme of things, that Walt Crawford (we have the same middle initial, but I’m not a “Jr.”) is probably more important to the world than I am–but he has a somewhat lower web profile. I’m pretty sure we’re both members of the Nature Conservancy… Still, I doubt very much that St. Louis’ Walt Crawford has a publication named Cites & Insites or that he wrote about the proposed Google Book Search settlement.

Still…there’s enough wrong with Ms. Coyle’s first paragraph (in a post that appeared nearly three months after the essay in question) that it’s tempting to leave it at that. If Coyle can’t be bothered to link to the essay being criticized or name the publication properly, and if she finds it necessary to patronize me in the post title and the lead paragraph, why should I take her comments seriously? (She knows how to do links: there are two links in the post. I can only assume that the decision not to link to my essay is deliberate.)

[Why did it take me two weeks to respond? Anyone who's followed this blog or my FriendFeed feed knows: Since May 10, I've been spending nearly all my energy moving to a new house--and from May 14 through May 18, I didn't have internet access. Also, I recognized right off the bat that a hasty response was a bad idea.]

A quick exercise

Before reading this response further, you should read the commentary. If you haven’t already done so, I suggest reading the whole essay (including but not limited to “Putting on several hats” on pp. 4-5)–but since I’m being charged with agitation and loss of reason, you could focus on pages 20-25. Consider particularly the language in “Google/AAP settlement” (pp. 20-21) with its “Ping!” refrain and the right-hand column on p. 21 (from “…this is the pact with the devil” through “THIS IS EVIL“).

If, after reading the extensive quotations from Coyle and my brief interspersed comments, you find that Coyle is consistently cool and logical whereas I’ve gone off the deep end and gotten things wrong, then it may not be worth your while to read the rest of this.

But as I reread it, twice, I see no agitation on my part, and less rhetorical fervor in my notes than in some of Coyle’s commentary. Maybe Coyle wasn’t agitated in those posts, but it certainly reads that way–or is it that Coyle is allowed to be agitated but I’m not?

Specific objections…

What of my comments does she object to?

All libraries as well-curated collections

In questioning the need for Google to digitize based on deliberate collection-building, I say “I don’t know of any big academic library or public library that’s a single disciplinary collection–or, realistically, a set of well-curated collections.” (Coyle omits the italics in “any.” No biggie.)

Coyle says “an academic library is INDEED a set of well-curated collections.”

Really? Good academic libraries include well-curated collections, but I’ll suggest that most big ones contain a lot of materials outside that set of collections, particularly for libraries using lots of standing orders and approval plans. [OK, I spent too many years at UC Berkeley. If anyone suggests to me that the Doe Library is entirely a set of well-curated collections, I'd probably snigger, much as I love and respect the library.]

But that’s a matter of definition–what constitutes “well-curated”? I could have simply taken issue with Coyle’s lead sentences in the paragraph in question:

So the main reason why Google Books is not a library is that it isn’t what we would call a “collection.” The books have not been chosen to support a particular discipline or research area…

Even if I overstated “any,” Coyle’s implicit definition of “library” here excludes an enormous number of libraries. If Coyle wants to say that “Google Books is not a research library,” I probably wouldn’t object–but “research library” and “library” are not synonymous.

Library costs

I said “I don’t remember public universities admitting to substantial costs in cooperating with Google.”

Coyle says “Dan Greenstein estimated $1-2 per book”–and offers a link.

The article linked to says no such thing. It says that Greenstein estimated Google’s scanning costs at $1 or $2 per volume. Here’s the link: read it for yourself. (It’s a Daily Cal article. Depending how you read it, Greenstein might have been estimating a cost for cooperating with Google elsewhere in the article, but certainly not as quoted by Coyle–and, frankly, I can’t be sure just what the article is saying about the UC costs of the Google project. In any case, it wouldn’t have been an admission: This article appeared before UC joined the project. It would have been a forward estimate.)

I’ll stand by my statement: I don’t remember public universities admitting to substantial costs in cooperating with Google. (The first three words represent a caveat–maybe somebody somewhere said it and I don’t remember or never saw it. Greenstein did not say it, at least not as quoted from the cited article.)

Changing library use of libraries’ own material

Adding one brief paragraph to a long Coyle quotation, I asserted that nothing in the proposed agreement changes the ways libraries use their own material.

That’s a factual statement. Coyle’s criticism:

Not of their hard copy materials, but legal minds think that this changes the landscape for digitization and the use of digitized materials, even closing some options that might have been available before.

She quotes one such legal mind. Is there unanimity or overwhelming consensus? I don’t know (although I’m pretty nearly certain that there isn’t)–but it’s irrelevant to my simple, factual statement.

Privatization, profiles and abusing the language*

Coyle said in one of her original post that “The digitization of books by Google is a massive project that will result in the privatization of a public good: the contents of libraries.”

I objected to that sentence, “as I’ve taken issue consistently with the same claim by others with even higher profiles than Coyle (who are even less likely to ever admit they could be mistaken).” Coyle takes me on for not making the “higher profile” people and adds this: “But thanks for letting me know that you consider me a ‘lower profile’ person, Walt.”

What? If I say Barack Obama has a higher profile than Rick Boucher, I’m not saying Rick Boucher is “a lower profile person”–except by comparison. If you want names, there’s Brewster Kahle and Siva Vaidhyanathan–and yes, I do consider them higher profile. (Based on Coyle’s post that I’m commenting on here, however, I withdraw the parenthetical clause in my comment.)

I went on to say the “privatization” claim was “Nonsense. Sheer, utter nonsense. The libraries and contents will still be there. OCA will still be there. I’m sorry, but this one just drives me nuts: It’s demonization of the worst kind and an abuse of the language.”

Coyle’s response?

There is general agreement that Google gets a monopoly…at least on out-of-print books.

Based on this “general agreement” she says the claim of monopoly “is a factual statement.” I haven’t seen any sort of unanimity on this claim, and I wasn’t aware that consensus constituted fact–but in any case, that has nothing to do with the wording I objected to: “privatization of a public good: the contents of libraries.”

Did Ansel Adams privatize the great views in Yosemite by taking photos that are so iconic they’ve made it difficult for anyone else to do as well? Obviously not; he created something by using a public good, and in doing so enhanced the public good (making Yosemite more popular).

If I go to a library, check out some books, and create something new based on those books, it would be nonsense to say I’d privatized the contents of the library. If I built an index by going through each book, and then returned the books, it would be nonsense to say I’d privatized the contents of the library.

How is Google’s project different? The books are on the shelves, at least as accessible as they were before Google scanned them…and realistically a lot more accessible.

The public good is not in any way diminished or privatized. If a possible future extension of the public good is less likely because Google has a first-mover advantage or because the language of the settlement gives them advantageous treatment, that’s a very different thing.

Preservation and longevity

Discussing issues of preservation and longevity, I said:

Won’t the fully-participating libraries have digital copies? I can’t think of institutions with better longevity.

Here’s how Coyle begins her refutation of my comment:

To begin with, only fully participating libraries will have digital copies…

Since Coyle agrees that “fully participating libraries will have digital copies,” there’s really no point in going further. (If I say “All Honda Insights are hybrids” and someone begins a critique of that statement by saying “To begin with, only Honda Insights–among Hondas–are always hybrids”–there’s little point in continuing the discussion.)

…without discrimination and without liability

Here’s one where I may be wrong. I assumed Google wouldn’t argue with the idea of carrying all scanned books.

Coyle points out that the settlement does not oblige them to do so. Since this is the single case in which she’s asserting I would have gotten it right if I’d read the full 134-page settlement, I assume this is the genesis for the post’s title.

If we assume that Google was 100% responsible for the language of the settlement (which I do not) then I’m clearly wrong here. Let’s assume that I am.

I’ve been wrong before, I’ll be wrong again. If Coyle had pointed out this single case in a more temperate manner, I’d be delighted to include that in an update to the essay as a useful correction and expansion.

There are legitimate reasons for concern about the settlement

That’s what Coyle says.

I agree. I say so repeatedly in the March 2009 Cites & Insights.

If that wasn’t the case, I wouldn’t have produced a 30-page issue: A one-paragraph note would have been sufficient. I certainly wouldn’t have guided people back to Coyle’s posts.

Coyle doesn’t think that anything she has said is “nonsense.” Sorry, but I have to disagree. The “privatization” line is nonsense–just as it’s always been when Prof. Vaidhyanathan uses it, just as it is when Brewster Kahle uses it. It’s an abuse of the English language, and by demonizing Google it gets in the way of improving the settlement and the situation.

Frankly, if it hadn’t been for the tone of Coyle’s post and her accusation that I’d lost a clear head, I might not have written this post at all. Coyle has provided valuable service over the years in analyzing the Google Books project and the proposed settlement.

*Postscript: The comments on this post include various defenses of “privatization” as an accurate and appropriate term. They make interesting reading, and I urge readers of this post to read all of the comments–and decide for yourself. (I’ll probably prepare a commentary in a future C&I, incorporating most or all of this post and its comments.)

I still regard “privatization of public goods” as an abuse of the language as used for anything in the proposed settlement. When you create something new based on public goods, leaving the public goods intact, I can’t find that to be privatization as I understand the word.

But I should also clarify that it’s not Karen Coyle’s coinage or distinctive usage–if I’m saying it’s nonsense on her part, I’m also saying it’s nonsense on the part of Siva Vaidhyanathan, Brewster Kahle and probably quite few others. Which, to be sure, I am.

It’s a shame that an argument over books uses the language so sloppily–but “privatization of public goods” has a distinctive harshness to it that more accurate terms might not.

This postscript does not attempt to cut off the discussion of the term. I think it’s a fascinating discussion. Do note that I regard comments here to be bound by the same CC license as the blog itself, meaning I can (and will) quote them in their entirety in Cites & Insights–and, of course, that anyone else can quote them for noncommercial use.

About the only thing I would add here has to do with the treatment of “monopoly” as fact rather than assertion, or the claim that there’s general agreement. At least based on what I’ve seen in the press, Paul Courant explicitly denies that the proposed settlement grants Google a monopoly. I’m nearly certain there are other informed parties who also disagree with the sources Coyle quotes. In any case, it is overreaching to call it a factual statement; it’s a claim or an opinion.

Comments on the post

In general, I’m reproducing comments (and my responses) exactly as received. I’ve omitted pseudonymous and anonymous comments.

Siva Vaidhyanathan, May 24, 2009:

Hi Walt,

I just thought I would weigh in on the privatization question. I see that you and Karen are in the midst of a heated argument. I don’t need to speak to every point of what seems at this time to be one of diction and manners. I respect both of y’all very much. So I hope I can push the argument beyond its current domain.

To be clear: the privatization indictment does not fall on Google. Google is private. It does what is good for it. Google is not the problem here.

The privatization accusation is one that bears on the university libraries that have — for the most part — given away millions if not billions of dollars worth of collections to a private entity with no clear return and at great risk of liability. The libraries are committing self-privatization. That has two levels: the terms of the original deals with Google and the new vending machine proposal that comes from the settlement.

This whole project is gross corporate welfare. The currency at stake is a non-rivalrous good. So it’s not like federal subsidies to Agribusiness. It’s of a lower scale and stake. But it’s welfare nonetheless. The system profits Google and Google alone. The libraries see little or no benefit from the deal. So let me explain what I mean by that.

You raised a strong rebuttal: Google as patron. Let’s say I walk in to a library. Use the collections. Check books out. Make copies of some of the content. Then I set about creating something new that relies on that content that I sell on the market. That’s in fact what I do with the books I write. Good enough.

How is Google different? No patron taxes or binds libraries like Google has.

First, when I use a library I do not tie up the staff time of dozens of employees for years at a time (at least I hope I don’t). This is happening at every Google partner library. I do not make librarians sign non-disclosure agreements that prevent them from discussing the pros, cons, and costs of the my use with the public (or even their own faculty). My use of the library is compensated by the taxpayers of the Commonwealth of Virginia and by the fees my students pay.

Google, in contrast, “pays” directly for this windfall through an illegal barter arrangement by which it agrees to make low-quality wholesale copies of millions of books (that Google chooses, thus not necessarily serving the interests of the library).

Why is it illegal? Well, because of the un-litigated and thus unsettled copyright infringement issue: Google is transferring copies as payment for a commercial transaction. Nothing in Sec. 107 0r 108 or any case relying on these sections grants a right to make copies of copyrighted works and transfer them as payment. Nothing in the settlement prevents publishers from suing universities if they don’t like how universities are using the material. That’s such a scary prospect that many Google partners — including my employer — have declined to download these images from Google’s servers. University lawyers are rightly alarmed at the liability prospects. So for many universities it’s worse than a something-for-nothing prospect. It’s a loss. They lose staff time, lawyer time, and books from circulation for weeks at a time. Yet they get nothing.

Now, I am willing to say at this point that if Hathitrust flowers into what its visionary leaders predict, I am willing to withdraw many if not all of these concerns.

Let’s remember that the UC system deal and the Michigan deal are the exceptions within the Google Book Search universe. These universities negotiated better terms for themselves early on. Michigan is still cutting better deals even now (see­center/2009/05/umich-gets-better-deal-in-googles-library-of-the-future-project/) The rest of the libraries are finally coming around to realizing what a bad deal this was for them and the extent to which they were scammed. Harvard did not back out just because Bob Darnton likes the smell of books. He dislikes the smell of the contract he inherited from the Larry Summers regime. I have heard clandestinely that a number of other partners are considering terminating their deals if they are not substantially renegotiated.

The second part of the privatization is the vending-machine model of delivery that Google is pushing on libraries through the settlement. Libraries will for the first time have little bookstores inside of them. That’s bad enough. But libraries will have no recourse if Google overcharges for the service or (more likely) puts onerous terms on the use of the material. That’s blatant privatization of public library space. Now, I’m no purist. And I recognize the value of hot-dog vendors in Central Park. But this has not been part of a process by which the libraries have been invited to the table or been able to stand up for traditional values of librarianship: free and open access; user privacy and confidentiality; preservation; a public space free of commercial influence; etc.

So while the word “privatization” is unsubtle and imperfect, it’s relevant and important in public discourse about this project that will have tremendous impact on the future of libraries and the public sphere. I use it because I have to pop the bubble of perception that Google works for us. And I use it because I have since 2004 wanted libraries to see that Google does not work for them. Google works for its shareholders — as it should be. We as citizens and members of the library community have not been as critical or vigilant as we should have been. And sometimes strong words like that serve the purpose of waking people up and pulling them into the conversation. The fact that criticisms of Google Book Search and the settlement have grown louder and wider in recent years is evidence of the value of such tactics.

Privatization is not a boolean quality. It has gradations. If I can’t convince you to see this massive project of text-giving by public libraries to one of the world’s most successful and aggressive corporations as part of the process of privatization, so be it.

Brewster, Karen, and I are hardly naive about the steady privatization of library services through expensive vendors etc. Brewster, after all, made his killing through the private sector in the first place. But we all recognize the virtue in minimizing the influence of private interests within and among public institutions — especially libraries.

Oh, and BTW, OCA will not necessarily be around forever. It depends on philanthropy. And philanthropists don’t like to duplicate what the private sector is already doing. Moreover, if the settlement goes through OCA will not be able to compete at the level of full-text availability for most of the books of the 20th century. So there is no point even comparing them. And I think we all have to consider the pressures that non-librarian boards and administrators put on libraries to reduce their collections whenever there is a potential “alternative” to the physical item. And Google is just that sort of poor substitute for the original. I wish I were as confident as you that the OCA will be part of the mix 20 years from now. I think a bigger danger, however, is that Google either goes bust or transforms into something very different. What if its board in 2020 decides the book project is a money-loser. What then?

These are serious issues, even if you don’t want to traffic in terms like “privatization.” I know that you get that and I value your contribution to their consideration.

So what do you want to see next? What should libraries do in the case the settlement is approved? What should they do if the court rejects the settlement or the Feds pursue anti-trust action against Google?

I have some big ideas. I would love to hear yours.

Walt Crawford, May 24

Thanks for the detailed comment. No, you haven’t convinced me that “privatization of public goods” is a reasonable term for what you say is going on. But you state the case well.

I don’t expect to be contributing Big Ideas in this particular area. There are plenty of others more qualified to do so. I’m mostly commenting and synthesizing, in this case as in many others. (I’ve never been a “public intellectual,” and at age 64 I may lack the drive to become one.)

I certainly agree that these are serious issues. I think serious issues deserve clear language, and I continue to think “privatization” is so unclear as to muddy the issues in general. But I’ve said that before, and may be getting repetitious with it. I’ll let it go at that.

Jim Carlile, May 24

I think where the idea of “privatization” does come in is when considering the possibility that libraries will weed their collections in response to the online Google corpus. If they start trashing old “duplicate” PD works– which many public libraries will indeed do– this means that Google has effectively privatized the public domain for many users.

Academic research libraries may not be as willing to discard their books, but some will, at least a part of their collection. The political pressures will be too great.

This will give Google a very real monopoly on access. Factor in the profit potential of these “Google machines” and it’s very likely that the only way you’re going to get ahold of many books in the future is through the Google.

Walt Crawford, May 25

I must have missed something here, as my understanding is that the settlement wouldn’t change the status of scanned public domain works at all–they can be downloaded and reused freely. Even if research libraries took the unprecedented step of tossing out their PD collections (is Harvard really going to abandon pre-1924 books? Are there political pressures on the many private ARL libraries to toss out stuff that Google’s scanned? Really?), I don’t see any probability that the only point of access to PD books could be Google. I thought the whole “privatization” argument had to do with the majority of the scanned books, which are out of print but still covered by copyright.

Apart from that, this is a series of speculations about what might happen–at best a slender rationale for, say “potential privatization through inattention.”

Eric Hellman, May 25

Walt: Looking at the language used in this discussion, I’d have to say that your characterization of Karen’s “privatization” claim as “nonsense” is inaccurate. It may sound odd to describe publishers who sell copyrighted translations of “Romeo and Juliet” as “privatizing Shakespeare,” but it’s not nonsense.

Perhaps the most interesting thing about the use of the word “privatization” is that strictly speaking, the works covered by the settlement agreement are all “private” under US copyright law. In fact, opponents of the settlement agreement on the rightsholder side are criticizing it as an unfair “compulsory license” which infringes on the property rights of authors.

I think it’s fair to say that there is “general agreement” that the settlement agreement gives Google an “initial monopoly” on works that remain orphans. There is divergence on how to describe Google’s position with respect to other classes of works.

Jim Carlile: The settlement agreement has nothing to do with public domain works. It covers only works that are in copyright.

Walt Crawford, May 25

Eric: If someone translates a public domain work, the translation is, I believe, legitimately copyrightable–and does not in any way lessen access to the original work. So I wouldn’t buy calling that “privatization” either. It doesn’t fit any of the definitions of the word that I’ve found.

As to “general agreement” on a monopoly situation–if there’s actually a consensus among all lawyers and commentators, then isn’t the proposed settlement doomed on antitrust grounds? (There was surely never “general agreement” as to the strength of Google’s fair-use argument; I’m really surprised if there’s legitimately consensus on the monopoly claim. Are Google’s own lawyers really that far out of touch with the entire legal community?)

Siva Vaidhyanathan, May 25

I believe Eric has raised a very important point that reflects on a very different notion of “privatization,” and that is of policy. There was this problem or challenge: It’s safe to say that creating a text-searchable digital index of millions or billions of books, and making them available via the Web would benefit the republic and the planet. Let’s just assume that.

Given that assumption, what prevented us from doing that? Three things: the concentration and expense of the delivery technology (the Web); the expense of scanning, indexing, maintaining, and supporting the collection (what Google is doing but libraries should have been doing); and changing copyright law to facilitate this scanning under the right conditions.

The first challenge took care of itself for most of the United States and Europe — mostly through libraries. But we still have a long way to go with the rest of the world.

The second challenge is being met (poorly, I would say) by Google boldly reaching out and doing it. Whether libraries should have given away their riches to Google was the subject of most of the debate within the library community before the settlement.

That third challenge is a doozy. Congress should have decided this issue. I firmly believe that if we want something in this country we should petition the legislature and launch a political movement toward that end. Going to courts to solve the problem is unhealthy and risky. This was one of my main criticisms of the Google project before the settlement.

Now, if the settlement prevails, we will see a radical change in the law. Private law is being used to shape public policy over one of the most precious aspects of republican ideology: the incentive system we rely on to fill the public domain with rich texts. This settlement establishes one company as the sole arbiter of a compulsory license over millions of books. It does so through the class-action process. It would establish an elaborate system not unlike ASCAP or BMI, but without the legislative scrutiny, deliberation, and specific exemption from antitrust.

This is too important to be left to the discretion of one search engine company, a small group of major publishers, a small group of elite authors, and one federal court in the Southern District of New York.

The rest of us should have stake in this process. We do not. We can blog about it all we want but none of the parties cares about our issues and concerns.

A handful of private actors are making public policy—thus privatizing the policy-making system.

That’s actually a bigger problem than whether the act of capture “privatizes” the library. We can dispose of semantic disagreements. We can’t dispose of this rather radical change in how policy is implemented.

Walt Crawford, May 25

Other than a possible quibble about “what libraries should have been doing”–Michigan was, in fact, doing some of it, but the bucks to do scanning to library standards posed, and pose, a substantial barrier–I have no real disagreement with this latest comment.

Jim Carlile, May 25

Actually, I’m just using PD works as an example of what can happen when one company gets in there and locks up the corpus. This possibility of “privatization” goes beyond just PD works, but I think it’s important to remember that Google can end up privatizing the public domain, and at public expense. It’s still privatization, in a very real, and not abstractly legal, sense.

But the problem with the Google “vending machine” idea goes way beyond public domain works. If libraries can sell copies of copyrighted OOP works, then they will have a great incentive to toss out many older books that aren’t PD. I’m not worried about Harvard, I’m worried about large public libraries.

BTW, it’s true that there’s nothing in the Agreement regarding public domain works– those are controlled by Google’s separate agreements with the contributing libraries. But in the UC agreement at least, there is no requirement that Google allow free downloads of PD materials– it’s view only. Downloading is completely discretionary on the part of Google, and if libraries have Google vending machines, how much incentive do they all have to keep giving away their PD corpus for free? Not much.

Most people don’t know this– they take it as a given that Google will always provide free downloads of PD works. But there is no basis for this faith.

So far the discussion has revolved around abstract notions of privatization in regards to scanning and acquisition. But what I’m talking about is Google locking up the books for profit. That’s privatization front and center, and it can easily happen.

Eric Hellman, May 26

Walt- Just because something is a monopoly, doesn’t mean it has antitrust problems. Indeed, copyrights, patents and trademarks all create 100% legal monopolies. Randy Picker’s paper does a wonderful job of illuminating the murkiness of antitrust law as applied to the Google Book Search Settlement agreement and makes suggestions as to how possible antitrust concerns might be addressed. papers.cfm?abstract_id=1387582

Jim Carlile, May 29

[Omitting reference to pseudonymous comment.] In ten years or less, the very real consequences of Google locking everything up for a downloading or view-only fee will overshadow any of these philosophical arguments about exactly what they are doing right now.

And it’s already begun. To get back to planet Earth, Google has now restricted the downloading of a number of PD journal titles. It’s view-only for these guys– they even claim that the copyright holders have “granted permission” for us to view their full scans! This is disingenuous, of course, but it’s where they are at with this Book scheme. It will only get worse, too.

My concerns are with this privatization of access. I’m not worried about Harvard or UCLA students getting their books, I’m worried about the public at large, who will very quickly be seeing their collections weeded of Google “duplicates” and their only alternative the Google machine.

The worst thing right now is that the negotiated Settlement has already blown any possibility of liberating orphan works from onerous copyright restrictions, because they want to essentially place these works back into print, Google style. It’s no coincidence that the Settlement only mentions orphan works three times in its 100+ pages. That’s because their fate will be a profitable one for Google and Google alone. But it’s very bad public policy, even if it is a nice private gain also for whoever operates those vending machines and the few orphan rightsholders who come out of the woodwork. At the very least, there shouldn’t be a dispute that the Agreement at least puts under private control all orphan works. That’s bad enough.

Peter Murray, May 30

Jim Carlile says:

And it’s already begun. To get back to planet Earth, Google has now restricted the downloading of a number of PD journal titles.

If the content is truly in the public domain, then anyone can do anything they want with it — including limiting the number of downloaded copies or how the content is viewed online. In other words, there is nothing preventing you from digitizing the content on your own dime, creating the server infrastructure, and buying the bandwidth necessary to serve it to the world. I’m sure any number of institutions would like to chat with you if you were willing to put in that kind of effort.

Let’s keep some perspective here, okay?

Closing Notes

After writing the introductory section of this essay and formatting the long quoted sections, I turned to the evil empire to search “privatization Google Books” (as words, not phrase), to see what others have been saying recently.

The first result is the very high profile Siva Vaidhyanathan, essentially repeating the two long comments that appear above. That’s Google Page Rank at work: The same text appearing on Vaidhyanathan’s blog is always going to show up higher, even if it originally appeared on my blog. Then you get list items citing Vaidhyanathan’s blog—several of them—and an odd column quoting Kahle’s similar use of “privatization.”

I should note that Brewster Kahle uses more extreme language than Siva V. Speaking of the University of California, he criticizes it for “privatizing its library system” and says “They’re effectively giving their library to a single corporation”…even as he’s pleased that they’re also working with OCA. [Emphasis added.] Maybe “effectively” serves to end any discussions of logic or language.

Paging through unrelated results (remember, I didn’t do a phrase search), I looked for citations involving anyone but Siva Vaidhyanathan or Brewster Kahle—some of that mass consensus as to the NewSpeak usage of “privatization.” I didn’t find loads of it. I did find one comment, on Digg, from someone else (“billricardi”) who found Kahle’s language preposterous:

Brewster, have you blown a logic fuse? Do you think because Google has a online library, suddenly every physical library in the world is going to disappear? Does he think Google BURNS the books after they scan them? Does he think that brick and mortar libraries will be forced to shred these books if they have copies?

Google has just created a new way to access these books, it IN NO WAY impacts libraries that are currently out there. If people want to they can use Google. If not, they can do it the old way. Nobody is 'privatizing our libraries'. A company has found a new way to make information available, not destroying the old ways.

Eventually, I reached Karen Coyle’s usage. Even later, I reached an item from The American Consumer Institute and another from Eric Ivanov at, the latter suggesting that access to public libraries might be going away anyway, as might print books. I stopped after the first hundred of the 690 results Google would be willing to show me. I didn’t really see a range of people echoing the “privatization” refrain.

This discussion is not about whether the proposed settlement is ideal, should be modified, or should be abandoned entirely. It’s about language and demonization. “Privatization” is a vivid rallying cry for some sectors (although it’s also been an energizing cry for other sectors, those who believe privatization is a good thing—e.g. many Republicans). But vividness does not, in my mind, excuse fundamental inaccuracy—and misusing the language will turn off those of us who believe that words do have meaning.

I believe there are valid concerns about the proposed settlement. I’m delighted to see that a range of parties is raising some of those concerns. I don’t believe it’s necessary to abuse the English language in order to raise those concerns. Nothing in these posts, the comments, or the other statements I’ve read leads me to agree that “privatization” accurately describes what’s happening here.

“This settlement makes it likely that Google will be the only digital source for many or most orphan works, and that’s a bad thing.” There’s a statement I’d agree with, and it strikes me as short and clear enough to function as an argument…without using “privatizing” or any variant. Now was that so hard?

Cites & Insights: Crawford at Large, Volume 9, Number 8, Whole Issue 118, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, Editorial Director of the Library Leadership Network.

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