It seems longer ago than just 2002, but back then we were all looking forward to being able to find every book ever published on-line through Google Books. It didn’t come to pass, though 30 million volumes have been scanned. Google set out to scan all the books in as many libraries as they could sign up. Of course everyone knew there would be trouble. Different libraries imposed different restrictions on Google. Harvard and Oxford for instance didn’t let them scan books with active copyrights; Stanford allowed nothing more recent than 1964.
Here’s a piece by Tim Wu from The New Yorker examining the full unfortunate tale. “Unfortunately, Google made the mistake it often makes, which is to assume that people will trust it just because it’s Google.” I would have trusted them, and I had already filed the paperwork telling them that my old book(let) though copyright had been registered to Cambridge University Press, was in fact mine by a civilized reversion of rights.
Wu suggests resolving the situation by a one-time payout to rights holders. I think any settlement would be better than the current mess. Orphan works are a tragic waste. Sure, there may be a book or two in the gigantic pile which represents an opportunity to make money, but surely it’d be better to make all of them available and deal with the protests on an ad hoc basis. The benefit of having every book ever written available is surely massively greater than the problem of wrongly consigning some out of print book to the public domain before the author, whose heirs have done nothing about it despite all the noise about Google and scanning, is actually 75 years dead.
In 2008 Google struck a deal with authors and publishers to make all the scanned available to the public, for pay, and to institutions. The agreement was eventually dismissed by the law courts in 2011. Publishing industry made another settlement with Google, but the Authors Guild continued to pursue the law suit in the courts. Judge Denny Chin famously judged the scanning and display of extracts as fair use, but the Authors Guild has kept going. Now Judge Pierre Leval, of New York’s Second Circuit Court, ruled on October 6th, 2015 in Google’s favor in the suit brought by authors claiming that Google’s digitization of their books was an infringement of copyright. He explains that copyright law’s purpose is to expand access to knowledge. It is not all about enriching authors: “The ultimate, primary intended beneficiary is the public.” He also added, refreshingly, that if the copyrighted work is put to a transformative purpose, such a usage is permissible under the fair use provision of the Copyright Act of 1976. Judge Leval points out that Google’s search facility is “quintessentially transformative” — we can search thousands of books at the click of a mouse — and as such must be permissible as fair use. “The purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest.” All the searching furthermore allows users “to learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods.” Here’s NPR’s brief report, and a fuller discussion from The Scholarly Kitchen.
Joe Wikert, at his Digital Content Strategies blog, upbraids publishers for resisting the wonderful benefit of search ability which Google Books holds out to us. The world is, as publishers keep on saying, changing fast. Just get on the boat and celebrate the change. Being able to do the search Mr Wikert illustrates is a fantastic extension of our research abilities.
Dan Cohen, of The Digital Public Library of America, reacts to the decision in The Atlantic. We need to bring some order to our digital world, the outlines of which has changed greatly since Google originally started scanning. The ruling doesn’t clear the way for the resumption of scanning all books. But by making it possible for Google’s books search to continue, it allows us to dream that this decision may make further progress ultimately possible. We should all stop trying to put our finger in the hole in the dyke. A digital world offers opportunities wildly different from what we have grown used to in the past, and we need to come to terms with these changes. The idea of an Erasmus-like scholar traveling from academic center to academic center so as to research the books in different libraries is as crazy in a world with computers, as is the idea of now making these trips on the back of a mule. Our industry might well remember Darwin’s warning: “It is not the strongest of the species that survive, nor the most intelligent, but the ones most responsive to change”.