Google writes its own rules

[Commentary] Sceptics often ask of new government programmes: if it is so worthwhile, why is the private sector not doing it already? A similar question can be asked of companies claiming to be acting for the general good: if the public needs it, why is the government not doing it already? Google's plan to digitize all of the world's 168m books needs to be examined in this light.

Since 2004, the search-engine corporation has scanned about 5m titles, many of them under copyright. A comprehensive digital library could obviously generate a lot of revenue (although it is not yet fully obvious how). Last year, Google negotiated a long and complicated "settlement" with the Authors Guild and the Association of American Publishers, which had been suing it. Google would keep just over a third of revenues generated by these online books, with the remainder going to a non-profit book-rights registry run by publishers' and authors' representatives. The registry would seek out the authors of "orphaned" books - those under copyright but out of print - and distribute royalties to them. Google agreed to pay $125m to fund the registry. Neither privacy nor competition is the main reason for skepticism about the Google books settlement. The problem is that the arrangement is a usurpation. It is a false analogy to compare Google Books, as some defenders of the settlement do, to Amazon's Kindle system of e-books. Authors and publishers participate in Kindle by granting Amazon permission to publish in that format. Google's system would dispense with such permission. It is thus a change in the regime of property rights. The settlement authorizes a large corporation to manage the rights of authors it cannot locate, and to justify itself with vague invocations of our cultural heritage. Maybe our society is evolving in that direction anyway. The past century was an era in which people ceded rights to government in exchange for what they saw as a more efficient allocation of resources. Maybe publics are now willing to make the same trade with the private sector. Maybe we are headed back to the era of government-created monopolies such as the British East India Company and the Dutch VOC. But, if such a monopoly is to be created, government must create it explicitly and not permit interested parties in a private lawsuit just to divvy up the spoils.