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.