It’s a great time to be a copyright lawyer. Everything seems to be up for grabs. For example:
What if “Is Google Print fair use?” is the wrong question?
Massive archives of digitized books are coming, one way or the other, a fact that’s confirmed by Yahoo’s announcement of the Open Content Alliance, which will work with public domain and licensed content. Eventually, we’ll have full-text, searchable, archived “books” on screens everywhere. I suspect that in short order, someone will come up with a way to use voice-synthesis software to automate the creation of audio “books” based on these archives. You’ll be able to download the library to your iPod.
Given all that, should we be wondering, again, about some questions that were asked and appeared to be answered a decade ago? What is the future of the book? The future of the library?
Implications spin in various directions.
Suppose, for example, that Yahoo! concludes its public domain digitizing project. Is there a justification, other than disciplinary and institutional pride, for keeping all those books around — when they take up a lot of expensive space and require a lot of expensive care and supervision? If so, who should bear the burden of archiving all this paper?
Or: Is Yahoo! (for example) entitled to impose access restrictions on its archive — restrictions that might mirror, for example, time and place restrictions that physical libraries reasonably impose on their patrons? And if so, what is the right unit of analysis for this sort of thing? We might borrow from the music business here: as P2P and digital technology has changed how music is created, distributed, and consumed, we’ve seen steady pressure on the concept of the copyrighted “work,” down to the point where copyright owners demand royalties for re-use of chords or even notes. Copyright policy may want to hold a different line when it comes to text, but doing so will take some doing.
And: Are Google and Yahoo! proposing to create “databases,” in the sense that this term has been the centerpiece of various efforts to amend federal IP law with some form of misappropriation tort? Doug Lichtman today repeated his concerns regarding the security of full-text works scanned by Google. Take that concern one step beyond: If security is breached, publishers and authors may have uncollectable claims against the bad guys. Should Google have a claim, too?
Then: What about Google Print P2P? Even if Google Print shows endusers only snippets of text, does MGM v. Grokster impose a requirement that GP prevent users from mixing and redistributing that content?
Finally: I haven’t begun to think about the professional status (not to mention the “Romantic” status) of “the Author,” when to “publish” means to have a record in a database, or of “the Editor,” or even of “the Publisher.” Way down the road, Google Print and the OCA may contribute to shifts in professional and institutional organization, much as open access is threatening to do in academic publishing.
Note here that I’m not necessarily asking questions about the state of current doctrine. I’m wondering aloud (ablog?) about a world sans codex, where “creativity” and “progress” via “book” text is indistinguishable, in a technical sense, from “creativity” and “progress” via “blog” text, podcast, and IM. “Are Books Good For You?,” with apologies to Steven Johnson, seems like a slightly clever way to pack these thoughts into a single question. If we care about books as such, and if we care about libraries as repositories for books, then we should think carefully about how to manage Google’s and Yahoo’s proposed transition from atoms to bits.
1 response so far ↓
1 madisonian.net » The Grip of a Narrative // Oct 30, 2005 at 1:13 pm
[...] The Google Print cases pique my interest, not least because I study and teach i.p. law. Mike, Siva, and others have offered sharp insights and comments about Google Print and the cases. Mike’s two posts, one on the common law method and one on narrating Plamegate, helped crystallize a few of my thoughts on the Google Print suits, as well as the common law method. We understand new events, at least in part, by using familiar narratives. Using the familiar narratives no doubt obscures some parts of the new experience. At the same time, we’re not slaves to the narrative. If we focus our attention, work through our experience with active understanding, we can both see the new experience more clearly and enrich the narrative with new variations. I enjoy reading about the Google Print suits in part because I see us struggle to use our familiar copyright narratives (about creativity, control, and fair returns) and to update them to take account of new questions raised by the prospect of a searchable digital archive of most (maybe all?) print books. How can one do anything but enjoy questions like, are books good for you? We have a healthy stock of narratives for one-to-many communication, given the long history of the book and of publishing more generally, as well as radio and television. We also have an ample stock of narratives for one-to-one communication over great distances, given our already-long experience with semaphores, telegraphy, and telephony. Wikis, social tagging, and blogs are sparking new narratives about global, enduring many-to-many communication. (I suppose free and open source software are important forerunners of this last group, although with a focus on producing usable software, rather than enduring social experience.) Our narratives about digital search, like those for digital many-to-many communication, strike me as still quite new. The Google Print suits, and the Open Content Alliance’s different approach, show that our narratives for search are not only young, but also quite contested. We’re struggling, in part, to figure out how best to talk about these phenomena. Google and the publishers will no doubt struggle to offer the most compelling narrative, given our existing stock of stories and the highly particularized facts of Google’s deals with its cooperating libraries. What has any of this to do with the common law method? We take one dispute at a time. We understand the case against a backdrop of precedent (the familiar narratives that are most pertinent), and we also give the parties the freedom (within limits) to teach us what is new and different about the particular case … to show us what the familiar narrative misses (if one must champion a new understanding), or what it appropriately highlights (if one must champion the established approach). The common law’s genius, for me, is just this way it ensures that a familiar narrative doesn’t ossify into a mental deadend. The Google Print suits are not just bet-the-company cases. They’re not even bet-the-internet cases. They’re bet-the-mind cases. Trackback URL: http://madisonian.net/archives/2005/10/30/the-grip-of-a-narrative/trackback/ [...]
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