The Google Books project--and its extensive legal history--has been a preoccupation of this blog for years: here is a sampling of posts from 2006, 2008, and 2009. Pre-blogosphere, in 2005 I published a commentary in Biomedical Digital Libraries about Google Books and Google Scholar. In recent years I've paid less attention, but in recent days that has changed. Here's why: because I've long supported Google's fair use defense of the Google Books project, and for the moment that view is vindicated.
On November 14 Judge Denny Chin authored a decision that strongly supported Google's claims of fair use, and dismissed the Authors Guild's claims of copyright infringment. I was overjoyed by the ruling, although I still believe that the Library of Congress should be in charge of such a digitization program rather than Google Inc. For the legality of the case, I hope Judge Chin's reasoning withstands all of the inevitable appeals; as to the morality of considering ideas as property, the verdict is more mixed.
Let's take legality and morality in turn.
Legality: The Authors Guild's core claim is that Google Books is a vast exercise in copyright infringement, because the scanning required to make the project work occurs without explicit book-by-book, author-by-author permission. Of course, such permission would be impossible to obtain--trying to do such a thing would be the death of Google Books, which is the goal.
Google's response is that the fair use exemption to copyright law supported the aims of this project, which was to increase the reach of books that would otherwise go unread. The very purpose of copyright law, as Judge Chin notes, is to "promote the Progress of Science and useful Arts." Google's scans facilitate new purchasing or borrowing of books, and so they create new markets for authors. This is the part I never understood in the Authors Guild's case; they were, unabashedly, biting the hand that fed them. Judge Chin agreed, citing the fair use principle that any usage must not negatively affect the potential market for a work. Quoting the ruling: "[A] reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders." Exactly.
Judge Chin also cites the "transformative" nature of Google Books. The project takes books and rearranges them as a series of text strings for the purpose of searching. This is a new use that is different than reading. If you make something new that did not exist before, the use is transformative.
Of the four main factors that support a claim of fair use, Judge Chin finds that two strongly favor Google; one slightly favors Google; and one slightly argues against Google. On balance, then, Google prevails.
But what is most heartening is not the legal nuances that comprise the middle of the ruling, but rather the strong case Judge Chin makes at the end of his ruling. Here he moves from the legal to the moral, getting to the very heart of what is at stake in this case: "In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders...It facilitates access to books for print-disabled and remote or underserved populations...Indeed, all society benefits." [bold mine].
That's a win-win-win, legal style. And it's an excellent segue to consideration of the moral claims underlying this case.
Although Judge Chin makes a morally persusasive case, he does so within a legal and economic construct that assumes that ideas can be stamped, coyrighted, and sold. Of course, this is the world we live in and Judge Chin has to operate within it. The very notions of "intellectual property" and "copyright" assume that works of the mind are as discrete and concrete as other forms of physical property.
They are not. All ideas build upon each other, and language and modes of expression require this to be so. If we lived in a world in which every utterance were monetized, nothing would ever get done. Jonathan Lethem brilliantly pointed out the inherent permeability of works of the mind in his 2007 essay, "The Ecstacy of Influence." Lethem satirizes the idea that new creations are cut from whole cloth, as new instantiations of thought with no reference to anything that has come before.
I hear the other side now: "What about plagiarism? That's not cool." I agree. But plagiarism is borrowing without attribution. The other extreme would push us into a box in which no borrowing of any type is permissible without an exchange of cash. But we must borrow from each other to create anything new.
Thus, the entire notion of intellectual property has a flimsy basis. Copyright is a form of intellectual property protection for written works. Our copyright laws date from a time in which written works required physical publication to be distributed. In a narrow sense, that physical object was a piece of tangible property. Over the centuries we conflated form with function, believing that the container for a work was equal to the ideas contained within. But those ideas are not quantifiable, definitely not in a monetary sense.
An example: Friday night I downloaded Daniel Okrent's book Nine Innings to my iPad for $9.99, which was the required cost to facilitate the exchange. But once I read the book my mind will spin in a million directions, I'll crank out some blog posts, and perhaps write a book of my own about my intensified love of baseball. How do you measure that gain? Should I bill Okrent for the previously unexpended cost of my writing labor? If that sounds ridiculous--as it should--then perhaps the whole copyright game is rigged.
And I don't need to get money that way anyway. I'd rather distribute that book as a free ebook, and then speak at conferences of baseball fanatics if anyone wants to pay to hear me. I'd still be getting paid, in a different way, and my revenue would not depend on erecting an artificial barrier to reading my words.
And so: copyright, as classically understood, is not a required incentive to cause me to create. The mores of the Web will eventually lead to a fundamental reform of copyright law.
In the meantime, trailblazers like Judge Chin are building the bridge between our antiquated laws and the future that is in the making. Hats off to him and three cheers for his Google Books decision. I hope his courage causes the Library of Congress to take another look at the potential for a truly national digitzation program, and to seize the challenge it never should have ceded to Google.