Of Google, Geese and Librarians
My initial thoughts about the Google Books decision were posted last month on the Scholarly Communications @ Duke blog and are available here, so I won’t repeat any of that. I do think readers of this site might also be interested in a post by IP attorney and former professor of social psychology Zick Rubin, in which he discusses the possible motivation of the Authors Guild in deciding to appeal the decision.
In this space, however, I want to build on the comments that James and Ariel have made, and to turn the attention for a bit to the impact of the GBS decision on libraries and the kind of digitization academic libraries are most often involved in.
The main point I want to take from James is that we are living through a slow but significant shift in fair use jurisprudence that is adapting that odd doctrine, which is statutory yet remains common law in its ability to change and evolve, to the era of online communication and mass digitization. From Ariel I am struck by the assertion that even though Google is a player unlike any other in the ecosystem, what is sauce for the Google goose is also sauce for the library gander — that is, that this shift in fair use jurisprudence has potential consequences and offers opportunities for academic libraries as much as it does for giant Internet search engines.
In one sense the impact of the decision on academic libraries is obvious, and Judge Chin made it explicit in his ruling. Librarians use the Google Books database to do their jobs, and the researchers they serve do so as well. Some libraries have even incorporated Google Books search into the research techniques they teach to students. All this is part of the social benefit that was so important to Judge Chin in his ruling. It also echoes the trial court decision in the HathiTrust lawsuit, also brought by the Authors Guild and in which fair use was also found for specified uses of a large database of digital books (which had its origin in the cooperation between libraries and Google that created the Google Books database). In the HathiTrust case, Judge Harold Baer found that preservation, indexing and access for persons with text or visual disabilities were all key transformative uses entitle to deference as fair use. He wrote that he could not imagine a definition of fair use that would exclude these uses, so he really plowed the ground for Judge Chin.
Since the HathiTrust is administered by a collaboration of academic libraries, that decision is particularly encouraging to us librarians. But most of our institutions do not digitize millions of titles at a time, and few of us want to repeat the massive and expensive effort it took to create the Google Books/HathiTrust corpus. There is a myth that sometimes surfaces in discussions with publishers and other large-scale holders of copyrights that libraries are just looking for an opportunity to digitize our entire collections and put them online. Of course, as Ariel points out, this is a project well beyond the reach of any academic institution. The real impact for academic institutions in the GBS and HathiTrust cases will be on smaller scale digitization projects.
Most academic libraries, at least at research universities, have some kind of digitization program. In order to comply with copyright restrictions, those programs often focus on homogeneous collections where everything is likely to be in the public domain, or all of the items come from identifiable sources from whom permission can be sought. The great opportunity that these decisions offer is the chance to put together more diverse digital collections that would be curated around a theme. Such collections give academic libraries the opportunity to present unique holdings in an intellectually rigorous and thoughtful way to improve the overall online research environment.
The collections I have in mind often date from the mid to late twentieth century and revolve around important movements, events, etc. At Duke we are involved in projects to digitize materials from “The Long Civil Rights Movement” and the “Caribbean Sea Migration, to give two examples. This type of collection often encompasses a wide variety of different materials, including news clippings, letters, photographs, manuscripts and even oral history recordings. The rights in such an assortment of materials are usually nearly impossible to untangle, and completely impossible to clear. So fair use is an important part of the IP strategy behind any such collection.
The importance of the GBS decision for these kinds of focused digitization projects lies in the notion of transformative use. In the GBS case, Judge Chin found that indexing and snippet views were a transformative use, which supported the finding of fair use. In a parallel but rather different way, the creation and curation of a diverse pile of materials into a thematic digital collection represents an important transformation. The historical impact of these types of collection is analogous to the research impact that Judge Chine discussed at some length in his ruling. Libraries want to present these materials — and we are talking about the entirety of many works — in a context that gives them new meaning and makes them into a research collection rather than a mere confusion.
This is, I admit, a different sense of transformation than was applied by the GBS or HathiTrust courts. But the underlying justification for the analysis is the same, I think. It is to improve the scholarly culture of the internet in order to provide a social benefit. This approach to fair use, in which re-contextualization creates new meaning, has been explicitly upheld by both the Second and the Ninth Circuit. In Bill Graham Archives v. Dorling Kindersley the Second Circuit found that using posters for Grateful Dead concerts in an historical book about The Dead was such a transformative fair use, and in the so-called Jersey Boys case the Ninth Circuit held that the creation of a “biographical anchor” using a short piece of copyrighted content was also fair use.
Ariel suggests in his post that the Authors Guild pursued and continues to pursue the lawsuit against Google in order to convert the Internet into their own private marketplace. So far, at least, courts have not supported that effort. Instead, they have opened up a new opportunity for academic libraries, as well as others, to undertake targeted digitization that will make the Internet a smarter place, a place where researchers and scholars can find and use even copyrighted material to continue the task of promoting the progress of science and art. That, after all, is the purpose of copyright and the goal that is served by fair use.