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Library Organizations Should Support Google Book Search

Posted on: Thursday, 2 March 2006, 21:00 CST

By Dames, K Matthew

LATE last year, I criticized Michael German, president of the American Library Association, for comments he made to The Wall Street Journal ("Google Will Return to Scanning Copyrighted Library Books," by Kevin J. Delaney and Jeffrey A. Trachtenberg, Nov. 1, 2005, http:// tinyurl.com/aesgh) about Google Book Search [www. copycense.com/2005/11/ alas_gorman_str.html]. Gorman's comments characterized Google's digitization initiative as "a potential disaster" because the project "reduce [s] scholarly texts to paragraphs" and "flaunt[s] [his] intellectual property rights" as an author.

My criticism of Gorman had less to do with what he said than his apparent navet about how his comments would influence the raging debate about libraries' role in a digital (and digitized) global information landscape. When Gorman the individual affirms his reputation as a Luddite who is out of touch with today's information environment, his musings are irrelevant to the larger debate. On the other hand, when Gorman speaks (and is identified as) as the president of North America's largest professional library organizationthe de facto voice of "the library community"-his words have huge legal, political, and economic consequences for the entire information science profession.

I remain shocked and amazed at Gorman's penchant for speaking without apparent knowledge or context. But at least Gorman said something. In contrast, I find it disappointing that our nations' largest library representative organizations (LROs) have remained eerily silent on digitization copyright issues at a time when they desperately need to be vocal.

SILENCE IS NOT GOLDEN

The library community's silence is atypical. Traditionally, ALA, AALL, SLA, MLA, and ARL have been active in fighting Big Content's ceaseless efforts to gerrymander public copyright legislation for private, protectionist purposes. For example, the LROs spent considerable resources limiting the spread of the Uniform Computer Information Transactions Act (UCITA) at the state level and trying to curb the effect of some of the most controversial provisions of the Digital Millennium Copyright Act (DMCA) on the federal level. Currently, many key LRO advocacy members are involved with the Library of Congress' section 108 study group, which is reexamining the Copyright Act's exceptions and limitations applicable to libraries and archives in light of the changes wrought by digital media. The group's work is critically important in an era in which organizations including the Association of American Publishers, one of the organizations suing Google over the Book Search project, have sought to tarnish libraries as havens of content theft.

The LROs' work goes beyond copyright. Long before Big Business decided to challenge the Bush administration on the U.S.A. PATRIOT Act on the grounds that its provisions caused too much of an administrative burden, LROs (along with civil liberties organizations) were clamoring for heightened scrutiny of the law at a time (late 2001) when it was politically dangerous to do so. Further, many LROs actively encourage advocate-oriented action, as evidenced by ALA's sponsorship of an advocacy institute at its 2006 Midwinter conference. "Now more than ever, library advocacy is crucial to the longevity of our libraries" wrote ALA in its promotional copy for the institute. "As leaders in the profession, we need to build coalitions of advocates who can effectively communicate the critical role that libraries play in our society."

The LROs finally formalized their shared legal capability on copyright issues into the Library Copyright Alliance [www. librarycopyrightalliance.org/index.htm]. According to the Alliance's Web site, its purpose is to "work toward a unified voice and common strategy for the library community in responding to and developing proposals to amend national and international copyright law and policy for the digital environment. The Alliance's mission is to foster global access and fair use of information for creativity, research, and education."

The Alliance's mission is congruent with the vision Google has for Google Book Search, as the company outlined that vision in a blog post last fall. "Just as Google helps you find sites you might not have found any other way by indexing the full text of web pages, Google [Book Search], like an electronic card catalog, indexes book content to help users find, and perhaps buy, books. This ability to introduce millions of users to millions of titles can only expand the market for authors' books, which is precisely what copyright law is intended to foster." (Emphasis added.)

So, given the LROs' history, why is it that the library community's only public comments on Google Book Search come from an ALA president who seems more concerned with the possibility that his copyright could be "flaunted" than the possibilities that someone could find, use, or buy his work?

TAKE A STAND

I'll reiterate what I feel is obvious: ALA-along with its sister LROs-must have an official, consistent position on the Google Book Search project. It is unacceptable for the associations or the Library Copyright Alliance to be silent on this issue, particularly when Jonathan Band, the Alliance's legal counsel, has issued an unofficial white paper opining that Google's activity falls within the fair use doctrine. In a paper released in October, Band analyzed the Book Search project and pitted its mechanics against the factors of the fair use doctrine. He concluded the following:

[T]he Print Library Project is similar to the everyday activities of Internet search engines.... Significantly, the search engines conduct this vast amount of copying without the express permission of the website authors. Rather, the search engine firms believe that the fair use doctrine permits their activities. In other words, the billions of dollars of market capital represented by the search engine companies are based primarily on the fair use doctrine.

In its Library Project, Google is relying on fair use just as it and its search engine competitors rely on fair use when they copy millions of Web sites every week. Moreover, by giving publishers the opportunity to opt-out, Google is replicating the exclusion header feature of the Internet. Most authors want their books to be found and read. Moreover, authors are aware that an ever increasing percentage of students and businesses conduct research primarily, if not exclusively, online. Thus, if books cannot be searched online, many users will never locate them. The Print Library Project is predicated upon the assumption that the authors generally want their books to be included in the search database so that readers can find them. But if a copyright owner does not want Google to scan her book, Google will honor her request. Contrary to the [Association of American Publishers'] assertion, this opt-out feature does not turn "every principle of copyright law on its ear." Rather, it is a reasonable implementation of a program based on fair use.

[www.policybandwidth.com/doc/googleprint.pdf]

In my Gorman article, I criticized ALA for not "getting in the game." In retrospect, that criticism was hasty, because library associations have long been "in the [advocacy] game" and on the right side of many of the key issues. The LROs know how to do advocacy; they just have yet to do it on this issue. But the Google Book Search project raises critically important issues, and for once, the LROs have a better-than-average chance at being on the winning side of an important issue. In the Eldred case, the LROs suffered from a Supreme Court that seemed woefully out of touch with technological and economic reality and withered under Big Content's public relations assault, which was designed to ensure that Mickey Mouse and the Gershwin songbook remained closed to the public domain. In the Grokster case, the LROs suffered the same Supreme Court malady, but also from the perception that the defendants were offshore corporations running dens of content iniquity.

A WINNING CASE

In contrast, the Google Book Search litigation poses no such problems. Unlike Eric Eldred, Google has the public relations muscle to beat Big Content at its own game. Unlike Grokster, the allegedly infringing institution is a domestic company created by former Stanford doctoral students that just happen to be the darlings of the mainstream press and Wall Street. The LROs could not have dreamed up a better party than Google with which to align themselves. Is success a certainty? No, but consider this: Could you imagine the potential ramifications to the domestic economy if Google were to lose the case? You can be sure that such an argument will find its way into a footnote in one of Google's amicus briefs.

In the end, I see no valid reason why the library organizations have been silent concerning the Google Book Search initiative. Traditionally, they have been "in the game" on past issues. But they need to suit up for this one, preferably sooner than later. A win here could ease the pain of the past's losses.

K. Matthew Dames [mail@sesogroup.com] is the editor of CopyCense [www.copycense.co\m], an online publication that covers the intersection of Jaw, business, and technology.

Comments? E-mail letters to the editor to marydee@xmission.com.

Copyright Information Today, Inc. Mar/Apr 2006

Source: Online

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