What we talk about when we talk about the Google Books fair use decision

[Cross-posted at the Library Juice Blog]

[First, disclosure: I am currently affiliated with the University of Michigan Libraries, and was also so affiliated when the Google Books lawsuits were filed in 2005. I also worked in Media Relations for the UM side of the project in 2006-07. And, of course, I’ve spent the last several years working on a dissertation in which the Google Books Library Project is perhaps the central case (it’s certainly the longest chapter). These experiences have undoubtedly shaped the views that follow. And now, disclaimer: these are my own opinions, and do not reflect the views of any of my employers, past or present. Also, I am not a lawyer, and nothing here should be construed as legal advice.]

Last Thursday, when Judge Chin handed down his decision granting Google’s motion for summary judgment in the Author’s Guild’s 8-year-old* copyright lawsuit against it, I shared the elation of many in the library, tech, and research communities who, like me, have been following the case since the beginning.
Like them, I truly believe that the ruling is a victory for libraries, for innovation, and for research. It supports and confirms Judge Baer’s earlier decision in the AG’s case against HathiTrust, and in so doing provides strong reassurance that future digitization projects – whether executed by libraries or by other private or public entities – should be able to proceed with some confidence that as long as certain boundaries are respected, such digitization will be found fair and legal.

Reading the early celebratory analyses, I initially felt I had little to say – others had summed it up so well.

However, this morning I read the chain of emails re-posted to the Library Juice Blog from the Progressive Librarians Guild discussion list and Social Responsibilities Round Table discussion list, and it made me feel like I might have something to say after all – and when Library Juice’s founder, Rory Litwin, approached me directly to see if I had any thoughts, that sealed it. And here we are.

In that chain of emails, several progressive-leaning librarians expressed a great deal of skepticism regarding the idea that the Google Books fair use decision was actually “a victory for libraries,” on a number of grounds. Most of these rationales rested on a fundamental distrust of Google as a corporation, and of its motives for getting involved in scanning books.

OK, fine. No need to trust Google. No need to like or respect their motives.

But here’s the thing: however you might feel about Google or its motives, those feelings are irrelevant to thinking about the implications of Judge Chin’s decision for libraries.

Yes, Google undoubtedly plans to make money off these scans – though as the opinion notes, not by selling the scans in question, and also not by selling advertising around them.** But does that inherently make them evil from a library perspective? Don’t libraries do business with a lot of other corporations who do much worse things to information access than Google? (I’m looking at you, Elsevier…Wiley…Springer…) And what’s more, don’t libraries pay these corporations millions of dollars per year to provide their services? Google’s library partners never paid Google a red cent for scanning their books (which is not to say it was cost-free – only that Google didn’t charge libraries for its scanning service). So why is one acceptable, and the other not?***

Of course, there are many more substantial critiques that can be made of the Google Books Library Project from a library perspective. Among the most compelling, in my view, are the privacy implications for readers using the service (which are terrifying, if you think about it) and the frankly crappy metadata, which can’t help but impede any kind of research executed using the corpus (but especially the kind of “big data” work that is so in vogue these days). These critiques also appeared in the re-posted email thread.

But these critiques, as important as they are, are no more relevant to thinking about whether or not Judge Chin’s decision was a victory for libraries than the more subjective distaste for Google described above. They don’t matter either. Not here.

Judge Chin’s decision is beneficial for libraries not because it benefits Google (though of course it does) but because of the way the law works – that is, based on precedent. This decision sets the precedent that scanning books for the purpose of indexing – even books in copyright, and even without the copyright-holder’s permission – is fair use, so long as access to the actual digital versions of those in-copyright books is limited in particular ways. Judge Baer’s decision set a very similar precedent. And those precedents are immensely valuable to libraries who wish to go forward with digitizing and broadening access to their collections, whether they choose to do so in partnership with a corporation like Google, with a nonprofit like the Internet Archive, with a collection of their institutional peers, or with nobody but their own staff.

The nature of legal precedent is such that you don’t have to like the party that wins, and you don’t have to like what it’s doing, in order for that precedent to benefit you. Heck, I seem to recall that at least half of the cases we read in Intellectual Property & Information Law centered on pornographers, hate groups, and other unsympathetic protagonists – and those sketchy characters often won, but that didn’t mean the decisions set bad precedents from the perspective of library values and ethics. Often just the reverse.

Moreover, Judge Chin’s decision also benefits some library projects more directly – especially HathiTrust. Since HathiTrust is mostly composed of Google scans, it would have suffered a significant blow if the Author’s Guild had gotten its way, since it would probably have had to stop using all the scans of in-copyright works that Google had made, both for search and retrieval and, one suspects, for providing access to the print-disabled (though, I am not a lawyer – if Chin’s ruling had conflicted with Baer’s here, I’m not sure exactly what would have happened). Judge Chin’s ruling undoubtedly has the folks involved with both HathiTrust itself and the HathiTrust Research Center breathing a massive sigh of relief.

So yes, I’m sticking with my view, and the ALA’s view, and the view of many others, that Judge Chin’s decision was a massive victory for libraries. Because though the case was about Google, the decision is about more than that. It’s about the rights of information users – whether corporate, public, or individual – to make use of copyrighted works in transformative ways that do not imperil the economic well-being of the copyright holders, in a world where copyright terms last far longer than they truly should. For libraries, it’s about lowering the level of tension surrounding the legal risks of digitization, and of making secondary uses of externally-digitized works. It’s about the public good. Google may be a massive part of the information ecosystem, and its influence may be deeply questionable in many ways – but in the context of this decision, Google is only a tiny piece of what matters.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

*Seriously, if this lawsuit was a person, it would have just started the second grade.

**Most likely, as one of my dissertation research participants speculated, the benefit of Google Books to the Google bottom line will be indirect, through increased eyeballs and increased data-banks that help to improve the algorithm and sell advertising in other parts of the Google megasphere.

***Also worth noting: Google does not have, and has never had, a monopoly on these scans. Heck, that’s part of what the Author’s Guild was suing over – that Google was providing the scans to libraries, with few limitations on what those libraries could do with them. And hey look! The libraries almost immediately started pooling their scans (along with other scans they’d created under other projects), and made HathiTrust! It’s almost as though the Google scans are accessible through a provider within the library world, which might be more beholden to library ethics and metadata standards! Well go figure!

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One thought on “What we talk about when we talk about the Google Books fair use decision

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