Yes, there is an essense of a library. And no, Google does not come close. But Michael is right to focus on actions instead of essenses. And here, as well, I would argue that yes, libraries do many things that Google can and will not.
There are serious ideological and practical distinctions that make libraries libraries and librarians librarians. And all the algorithms in the world are not going to replace them.
And he quotes this argument approvingly, in which the author distinguishes between rhetorical appeal to libraries and a “real” fair use argument.
I’m not a professional librarian, and I didn’t train at library school or in IS, so I don’t have a professional librarian’s sense of mission. I like libraries. But I have to ask some questions — both in order to make some sense of where Google (and Google Print) fits, and to figure out what a “real” fair use argument looks like.
If there is an “essence” of library, then: Can a library charge a membership fee and still be a library? Can a library charge a fee for borrowing materials and still be a library? Can a library not have an index or a catalogue and still be a library? Is a library a thing? Is a library a physical place? Is a library a practice?
My gut tells me that “libraries” are things and places and practices, all at the same time, and that membership and borrowing fees and absences of catalogues are all acceptable. Maybe the common thread is that the library maintains some permanent inventory of informational material, such that people are expected to return anything they use, and they are expected to return it intact. In social science speak, libraries play certain institutional roles in the information ecology; librarians, as custodians of those roles, manage their boundaries. But a library doesn’t need to be a physical place; we have offline digital “libraries” and online “libraries.” Maybe boundedness is the key element: for reasons of space and time and subject matter, libraries don’t collect everything — they are, in principle, selective, and a “librarian” does the selecting.
Is this really “essence of library,” taken from the librarian’s perspective? It is if we use our definition of “librarian” extremely expansively. We all build our own “libraries” of books and music, and of course the Betamax litigation gave us the ugly “librarying” neologism for videocassettes. I am my own librarian. If so, then “essence of library” isn’t a helpful construct, I think, since it trivializes the professional discipline that we call librarianship. Better, instead, to set aside the “essence of library” construct and to adopt a different perspective altogether. I don’t mean to disparage hardworking librarians, but I do want to suggest that the category “library” is better understood from the standpoint of how information users and consumers experience information works, in collections and otherwise, rather than from the standpoint of those who collect, present, and manage the works. That perspective unifies my colloquial use of “library” to talk about my bookshelf, and the publicly-managed collection of books and DVDs down the street, and university collections that don’t admit the public. As an information user or consumer, I regard anything that I experience as a subject matter/space/or time-limited collection of information works as a “library.”
What does that have to do with Google, and what does it have to do with fair use?
As far as Google Print is concerned, it turns the question around. In addition to asking “What is Google doing?,” we also ask: “How do we experience the material that Google Print is creating?” (This takes me back to Siva, whose work is all about celebrating how network technologies expand opportunities to experience information. P2P, for example, undercuts the experiential sense of libraries in the sense that we no longer regard the universe of information works as fixed and bounded.) Do we experience Google Print content as we experience other collections that we regard as libraries, or do we experience that content as we experience the Web — a functionally unlimited aggregation of data? Right now, the answer to that question has to rely on intuition and speculation. My money is on the second option, but in the end: who knows?
And as far as fair use is concerned, I don’t think that this sort of analysis is distracting at all; I think that it gets at the heart of the problem. As a copyright lawyer I’m always skeptical of characterizing an argument as an “authentic” or “real” form of argument. Copyright is too plastic (to borrow someone else’s word), and it operates at too many levels, for all that. “Google is doing what a librarian does” is a perfectly valid form of fair use argument — the case reporters are filled with fair use decisions that are framed this way — even if at the end of the day I think that the argument likely fails on the merits. Non-lawyers who encounter the fair use statute are tempted, understandably, to treat the text as filled with magic words (and as improved by magic words supplied by the Supreme Court, like “transformative”). The magic words are almost uniquely unhelpful, either as guides to what courts actually do, or as guides to what courts should do.