Following up his recent article in the New York Review of Books, Robert Darnton has an exchange of letters in the forthcoming January 14 issue with a number of others, including Paul Courant. The most novel element of the conversation is the following proposal by Darnton:

I like Theodore Koditschek’s suggestion that Google be treated as a public utility subject to regulation in the public interest. If that seems unrealistic, one should consider a compromise solution, which would draw a line between the books digitized by Google that are strictly commercial and the books that are no longer in print, although some of them are still covered by copyright. Google would continue with its project to commercialize digital copies of books currently in print, sharing the proceeds with the rights holders. At the same time, it would continue to scan out-of-print books and to include them in a database that would constitute a separate, open-access repository. The rights holders of the in-copyright but out-of-print books in that database would be given the opportunity to choose to keep their books out of the open-access plan and, if they preferred, to include their books in Google’s commercial operation.

This opt-out provision would be adapted from the similar provision of the ASA, which permits rights holders to remove their works from Google Book Search. By doing so, it would take advantage of the class-action character of the original lawsuit in order to promote a nonprofit project dedicated to the public good. The books in the open-access repository would be protected against litigation without recourse to legislation by Congress, and they would be merged with books in the public domain, forming a gigantic database—that is, a national digital library. (Of the ten million books that Google has digitized, roughly two million are in the public domain and six million are out of print but still protected by copyright.)

This proposal would effectively put unclaimed out-of-print books in the public domain, at least as to full-text access, with an opt-out option for copyright owners. It would deal with some of the exclusivity issues raised by the proposed settlement, but would heighten the class-action concerns and could be expected to draw substantial opposition from copyright owners.

I see the same old problems:

• conflating out-of-print books with books of no commercial value

• requiring opt-out rather than opt-in

These proposals would gut the institution of copyright, and inflict massive damage on the market in copyright licences and the professional production of written texts, as much as, and more than, the GBS in its current form.

This is a blueprint for a forced collectivisation programme.

I am a scholar. I understand the dream of scholars and librarians to have every possible written text readily to hand, and searchable.

But what we need - scholars, authors, publishers - is a market-based solution. The market for e-books is still very young: the first e-ink-based e-readers went on sale in 2006. At present it is unsettled and undeveloped. Formats, delivery, contracts, pricing are in a state of uncertainty. The market will settle down and grow: I have no doubt about that.

If there is a commercial demand – and there clearly is – for out-of-print and scarce books to be published in e-book form, then this will happen. It has happened before: consider the boom in reprint publishing that developed alongside the university expansions of the fifties and sixties.

It would serve no good purpose to allow this emerging market to be strangled at the outset, either by a court-created corporate monopsony or a grand government project.

a public utility.

Normally descibes things that are Natural monopolies : the road , not to trucks that use the road to move things from one place to another.

This is from wikipedia on

Common land (a common) is land owned collectively or by one person, but over which other people have certain traditional rights, such as to allow their livestock to graze upon it, to collect firewood, or to cut turf for fuel. By extension, the term “commons” has come to be applied to other resources which a community has rights or access to. The older texts use the word “common” to denote any such right, but more modern usage is to refer to particular rights of common, and to reserve the name “common” for the land over which the rights are exercised.

The act of transferring resources from the commons to purely private ownership is known as enclosure, or (especially in formal use, and in place names) Inclosure. The Inclosure Acts were a series of private Acts of Parliament, mainly from about 1750 to 1850, which enclosed large areas of common, especially the arable and haymeadow land and the better pasture land.

It is often thought that a common is somehow owned by everyone, or at least by the community in some sense. While that may have been true more than a thousand years ago, when waste would be used for grazing by the local community and over which there would not be, nor would there need to be, any particular limit or control of usage; since at least late Anglo-Saxon times, the right to exercise a right of common has been restricted to a commoner.