Below, I promised a more thoughtful response to Siva Vaidhyanathan’s recent posting about the virtues and vices of relying on Google to represent fair use in the context of Google Print.
Siva is suspicious of allowing Google to carry the fair use banner, when an authentic Library (capital L!) would be far, far better. Stripped to its essence, his reasoning is that Google = commerce, and has no incentive to pursue the public interest; Libraries = the public interest, and have every incentive (absent Google’s warping their view) to do the right thing.
Here’s where I think this argument goes wrong:
First, Google isn’t the black hat. In truth, there are no real black hats here, only a variety of interests (authors, publishers, distributors, libraries, readers, next-generations-of-all-of-them) trying to do their best in an economy and with a legal system that are both built on books, and that don’t deal very well with digital content.
Second, while Google isn’t an authentic white hat, in truth, there are no real white hats here, either. Everyone has a selfish interest in play. Even the libraries participating in Google Print are getting quite a nice cut out of the deal, in the form of full-text digitized content.
Both Google and the libraries are parts of overlapping institutional universes, and it’s best to look at Google Print, and the wisdom of signing on with Google (or rejecting Google’s plans) in light of those universes.
What is the relevant universe for Google and Google Print? One way to think about this, though hardly the only way, is that this is the universe of search itself, and that Google represents the Internet more broadly. Up to now, much of what we generally think of as “the Internet” has been an opt-out system rather than an opt-in system. Copyright has long nipped at the heels of this paradigm. We should think carefully before overthrowing it altogether, which is what the Google Print lawsuits appear poised to do. As Siva notes, Google is a big-time, for-profit, commercial outfit, with obligations to Wall Street and its shareholders. But Google’s business depends on the opt-out premise. In my view, Google’s commercial interests and the default Internet paradigm are pretty well aligned.
What about libraries? Library romantics may envision libraries as grand, stand-alone institutions (the Library of Alexandria), but libraries are almost always parts of other institutions. They may be part of government (the Library of Congress, your local public library, the Bibliotheque Nationale); they may be part of educational institutions (Widener, Firestone, Sterling, Bodleian). As a result, library mandates and missions overlap with the mandates and missions of the larger institutions. The mission of the individual librarian is to ensure that the patron has uninterrupted access to information, but to the broader institution the library supplies an important service that comes with a price. The library is often a cost center, not a profit center. It may be part of a university or a community that demands budgeting and accountability and little to zero risk. “Access” is part of an institutional context that puts financial parameters around both “collecting” and “distributing” that information. In short, in their institutional setting libraries have strong financial incentives to be aggressive licensors of digitized content, not only so that they can collect what they need, but also so that they don’t lose what they have. It is far, far better for libraries to play by e-commerce rules, and the rules of Section 108 of the Copyright Act, than for libraries to regularly test the limits of fair use. (In my view, the fact that university presses are unhappy about Google Print is consistent with this; university presses are generally profit centers, so what’s good for the library patron is bad for the press. To align their positions in the university, the library is more likely to respect the interests of the press than the reverse.) In their institutional context, in short, libraries are opt-in, not opt-out. From this point of view, libraries’ institutional interests and the default Internet paradigm are not especially well aligned.
The question, then, is which institution is better situated to be the legal proxy that the consumer needs in the case of digitizing large library collections? I haven’t concluded that Google Print is entirely problem-free, legally or otherwise. I’m simply observing that consumer-oriented fair use arguments rarely get litigated, because consumers are rarely in a position to litigate them. Google Print is a consumer-oriented fair use case. The fair use argument here is an argument that is unlikely to be made, or made well, unless an institution is willing to take it on. Libraries and their institutional partners — universities and governments — are unlikely to push fair use hard. Leaving large-scale digitization to libraries means licensing, not robust fair use. If your normative vision of copyright tends to licensing anyway, that’s a perfectly fine result. If your normative vision of copyright tends to include some meaningful fair use, I think that’s a problem.
2 responses so far ↓
1 madisonian.net » The Grip of a Narrative // Oct 30, 2005 at 12:40 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. We also have an ample stock of narratives for one-to-one communication over great distances, given our already-long experience with semaphores, telegraphy, telephony, radio, and television. 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/ [...]
2 Siva // Oct 30, 2005 at 3:50 pm
Thanks for responding, Michael.
“The fair use argument here is an argument that is unlikely to be made, or made well, unless an institution is willing to take it on. Libraries and their institutional partners — universities and governments — are unlikely to push fair use hard.”
Exactly. You have it right on. I can’t disagree with anything you wrote (except that libraries are in fact “white hats”).
But this is the problem exactly. Libraries, universities, and governments MUST do this. If we care enough to desire this service, we should be able to push the institutions that work for us (or that we work for) to do the right thing.
Google is a cheap solution to a lack of courage and knowledge among public institutions. I can’t stand by and see a private interest do what public instititions should be doing. This is what is wrong with so much of our economy and society.