Well, someone reads this blog, I’m happy to say. I just received an email from an aide to University of Michigan president Mary Sue Coleman, attaching the full text of a speech that President Coleman delivered today to the Association of American Publishers. The title of the talk is “Google, the Khmer Rouge and the Public Good,” which gives you a sense of just how boring and typically academic it is. You can download the full text here. [pdf] A taste:
The Google Book project was announced with great fanfare in December 2004. The crux of this project was that great library collections would now be searchable for anyone in the world with an Internet connection.
The global library was under way. It was no longer a question of “whether,” but rather “how” and “when.”
New technologies and new ideas can generate some pretty scary reactions, and Google Book Search has not been immune. The project, for all that it promises, has been challenged: on the editorial page, across the airwaves, and, with your organization’s endorsement, in the court system.
It is this criticism of the project that prompted me to accept your invitation to speak — and explain why we believe this is a legal, ethical, and noble endeavor that will transform our society.
Legal because we believe copyright law allows us the fair use of millions of books that are being digitized. Ethical because the preservation and protection of knowledge is critically important to the betterment of humankind. And noble because this enterprise is right for the time, right for the future, right for the world of publishing, right for all of us.
The University of Michigan educates tens of thousands of students, and is home to faculty engaged in extraordinary work. We represent the citizens of Michigan and the citizens of the world. And we embody the aspirations of a society that looks to great public research universities for solutions, cures, and answers.
Those responsibilities and obligations make it abundantly clear to me, as president, that the Google project is a remarkable opportunity — and a natural evolution — for a university whose mission is to create, to communicate, to preserve and to apply knowledge.
This is, simply, what we do and why we exist.
There’s more.
Google Book Search complements our work. It amplifies our efforts, and reduces our
costs. It does not replace books, but instead expands their presence in the marketplace.We are allowing Google to scan all of our books — those in the public domain and those
still in copyright — and they provide our library with a digital copy. We insisted on this
for one very important reason: Our library must be able to do what great research
libraries do – make it possible to discover knowledge.The archive copy achieves that. This copy is entirely, and only, for preservation and
research. As for the public domain works, we will use them in every way possible.
For in-copyright works, we will make certain that they remain dark until falling into the
public domain.Let me assure you, we have a deep respect for intellectual property — it is our number one
product. That respect extends to the dark archive and protecting your copyrights.We know there are limits on access to works covered by copyright. If, and when, we
pursue those uses, we will be conservative and we will follow the law. And we will
protect all copyrighted materials — your work — in that archive.Let me repeat that: I guarantee we will protect all copyrighted materials. I assure you we
understand that providing public access to materials in copyright, particularly those still
in print, would be unlawful. Merely because our library possesses a digital copy of a
work does not mean we are entitled to, nor will we, ignore the law and distribute it to
people to use in ways not authorized by copyright.Believe me, students will not be reading digital copies of “Harry Potter” in their dorm
rooms.We will safeguard the entirety of this archive with the same diligence we accord our most
sensitive materials at the University: medical records, Defense Department data, and
highly infectious disease agents used in research.At the same time, we absolutely must think beyond today. We know that these digital
copies may be the only versions of work that survive into the future. We also know that
every book in our library, regardless of its copyright status today, will eventually fall into
the public domain and be owned by society. As a public university, we have the unique
task to preserve them all, and we will.
Download and read the whole thing. Kudos to Mary Sue Coleman and the U of M for standing by the project.
O frabjous day! Callooh! Callay! (that was fair use, not to mention apt)
Mike — The link is dead, I think. Can you check it out?
Thanks for the heads up. Link is fixed.
Wait. She said “copyright law allows us the fair use of millions of books that are being digitized.”
Uh, but it’s Google that is claiming fair use here, not the University of Michigan. It’s Google doing the copying and presenting useless “snippets” through its mystical and incomprehensible ranking system. It’s Google capturing the text behind DRM.
What is she talking about her (and Michigan’s) fair use rights for?
Besides, what the Michigan library was doing before was not as much a Sec. 107 (fair use) thing as a Sec. 108 (library privilege) thing.
The ethics and nobility thing would ring true if the University of Michigan were actually assuming responsibility for this project. It is not. This is a disingenuous speech.
Siva,
Who is the agent and who is the principal? It seems to me that you and Mary Sue Coleman have your assumptions reversed.
Besides, in your earlier commentary criticizing Google, you were an enthusiastic proponent of the role of libraries and librarians in asserting and defending fair use rights. Here, a university — which in this context is asserting the interests of its librarians as well as of its faculty and students — is doing exactly that. Modern universities are usually criticized for being overly craven and commercial. Here’s a university that is publicly standing up for knowledge and education. Why the criticism?
Mike
Re Siva’s post, my interpretation was that President Coleman had lapsed into the “editorial we,” claiming fair use on behalf of herself, and – for instance – me. Google isn’t really “using” the works; Google is a bit like Xerox was years ago: just providing a new means for us – let’s take Ms. Coleman and me, again, as an example – to exercise our fair use rights to copyrighted material. Could this new means be turned to nefarious purposes? Probably. Does that mean it cannot be allowed? I would argue against that absolutist position.
It seems to me, though I’m not a lawyer – yet – that Google’s position is at least vaguely analogous to Grokster’s in the recently decided Supreme Court case: i.e., the legality of their scanning should have something to do with whether the end users actually commit piracy, how prevalent this abuse is, and whether Google encouraged them to infringe copyrights. In this case, if Google can take reasonable and effective steps to thwart copyright infringement, what’s the problem?
Maybe the lawyers can answer me this: would Google have some sort of “prior restraint” defense against being shut down before their work can be completed, or even well begun? Or is the argument that copyright law, as presently interpreted, disallows even the act of scanning copyrighted materials?
And look, can we not get nasty about this? President Coleman’s claims may be debatable, they may even be wrong, but they are hardly “disingenuous.”
The lawsuits are against Google, not Michigan. Google is doing the copying, not Michigan. Google is producing the index and the snippet system, not Michigan.
Coleman has no standing here. Michigan’s fair use (and other rights) don’t matter in this case because Michigan has foolishly outsources the risk and reward of the project.
So my criticism of Coleman is that she is confusing the matter. Michigan is only putting books on carts, which is completely legal. Google is the issue. Michigan has no control over what Google does with the books.
So my complaints are exactly in line with my general take on this issue: this is something libraries should be doing. Michigan is NOT doing anything here. It is outsourcing. But Coleman is deploying the good will and standing of her university for the benefit of Google!
This is more than disingenuous. It is unethical.
Well, the reply seems to confirm my sense that your baseline (Google as principal) is different from Coleman’s baseline (Michigan as principal).
I’m willing to buy the Michigan-as-principal argument, at least as a credible interpretation of what’s going on. I think that it’s wrong to assume that Michigan has outsourced both the risk and the reward. (We may *conclude* that in light of analysis, but I think that it’s misleading to make outsouring a premise.) The fact that Michigan has a noble narrative to rely on doesn’t mean that it’s immune from copyright liability. (Immunity may follow, however, from the fact that Michigan is a public institution. But on the merits, we could assume that Larry Summers had made this speech, and proceed accordingly.) If Google is liable, then if I were a plaintiff’s lawyer I would be eyeing the universities for secondary liability. Michigan has no control over what Google does with the books? Huh? There’s a contract out there, which I assume specifies exactly what Google can do with the books. So there is risk. And reward? If Michigan gets a digital copy of the Google-produced database, and Michigan makes that digital copy available to its user population as a supplement to the hard copies in its collection, isn’t that internalizing a meaningful part of the reward? I assume, by the way, that Michigan would make the full text available to its users — not the snippets that Google wants to make avaiable generally.
Try a couple of hypotheticals on for size.
First: The University of Michigan Library System buys a set of super-high-speed digitizers, hires a staff of technicians to run then, and makes a complete digital copy of its entire collection. UMLS mounts that digital copy on the web and builds an interface that allows anyone, anywhere, to search it and receive responsive snippets. Is this lawful? Ethical?
Second: The UMLS hires Google — under a written contract — to create a mechanism that allows online, web-based searching of the entire UMLS collection. Search results consist of responsive snippets, displayed in the user’s web browser. However, Google uses some miraculous, imaginary technology that provides this service without making digital reproductions of any of the UMLS hard-copy works. Assume that Google sells ads that appear alongside the search results, and that Google keeps all the money. Is this lawful? Ethical?
I’m curious.
In case you’re *really* curious, the U of M has actually posted their contract with Google online for all to read, here (PDF).
Just more food for thought.
As Elisabeth pointed out, we don’t need a hypo here. We have a real contract. A real bad contract.
And no, the contract with Michigan does not bind Google in any meaningful way. It could have, but Michigan dropped the ball badly here. No privacy protection. No principles of neutrality for ranking. No declared principles or guidelines for what enters the index in what order. Nothing. Librarians are justifiably pissed off about it.
It’s a ridiculously inept and irresponsible contract. But it DOES clearly indemnify Michigan from all liability Google might incur through infringement. So that’s nice. As I said, Michigan outsourced the risk and the reward.
Is the digital copy Michigan gets a reward? If it is, Google is dead. There is no defense — fair use or otherwise — that justifies the transfer of a copy of a copyrighted work as payment for access (or any other service). Please, Michael. Think of an argument that Google might use here.
The copy that goes to the libraries is the publishers’ magic bullet in this case. There is an act of copying (an infringement of the first exclusive right in Sec. 106), followed by a distribution for sale (an infringement of the third exclusive right in Sec. 106). That’s two acts of infringement, no defense.
Get this, the transfer of a copy to the university constitutes two infringements FOR COMMERCIAL PURPOSES AND PECUNIARY GAIN. Can you say criminal prosecution?
Now, no one has sued Michigan and no one will sue Michigan for three reasons:
1) Universities have much better standing in copyright than corporations do. No one has EVER sued a university library for infringement.
2) The Universities are not doing the copying, therefore they are not doing the infringing. As I said, they are putting books on carts. No Michigan personel are even allowed into the rooms where they scanning machines live. Only Google folks are. So they have the best of all affirmative defenses : “I didn’t do it.”
3) Even if a court considers that Michigan “induced” Google to infringe (ha ha ha ha), or shares some liability for “contributory infringement,” then Michigan (but not Harvard, Stanford, or the NYPL) enjoys sovereign immunity under the eleventh amendment (see College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board).
For all these reasons (chorus) Michigan should have done this project without Google! Instead, it did not. Instead, Google is going to lose and thus we all lose. Instead, Google (before it loses) will offer a really bad search function that many will continue to claim is somehow “revolutionary.”
And no, Michigan’s FAQ about the project makes it clear that it will not offer full text access to its digital collection. It will do basically what Google is doing, and in fact might just use Google. There might be some value added to using the search interface within the university network. But because Michigan is a publicly accessible library, it will not make the text available in whole.
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