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.