November 20, 2013

Elisabeth Jones’ Comments on the Google Books Fair Use Decision

I had the opportunity to chat with Elisabeth Jones at the ASIS&T conference earlier this month about the controversy over Google Books. Our conversation was on my mind when I posted that email discussion on the Google Books fair use decision, and I asked her if she would be interested in writing a follow-up. As it turns out, she was already planning on it. Her follow-up follows, and can also be found on her blog. -Rory Litwin


What we talk about when we talk about the Google Books fair use decision

Elisabeth Jones

[First, disclosure: I am currently affiliated with the University of Michigan Libraries, and was also so affiliated when the Google Books lawsuits were filed in 2005. I also worked in Media Relations for the UM side of the project in 2006-07. And, of course, I’ve spent the last several years working on a dissertation in which the Google Books Library Project is perhaps the central case (it’s certainly the longest chapter). These experiences have undoubtedly shaped the views that follow. And now, disclaimer: these are my own opinions, and do not reflect the views of any of my employers, past or present. Also, I am not a lawyer, and nothing here should be construed as legal advice.]

Last Thursday, when Judge Chin handed down his decision granting Google’s motion for summary judgment in the Author’s Guild’s 8-year-old* copyright lawsuit against it, I shared the elation of many in the library, tech, and research communities who, like me, have been following the case since the beginning.

Like them, I truly believe that the ruling is a victory for libraries, for innovation, and for research. It supports and confirms Judge Baer’s earlier decision in the AG’s case against HathiTrust, and in so doing provides strong reassurance that future digitization projects – whether executed by libraries or by other private or public entities – should be able to proceed with some confidence that as long as certain boundaries are respected, such digitization will be found fair and legal.

Reading the early celebratory analyses, I initially felt I had little to say – others had summed it up so well.

However, this morning I read the chain of emails re-posted to the Library Juice Blog from the Progressive Librarians Guild discussion list and Social Responsibilities Round Table discussion list, and it made me feel like I might have something to say after all – and when Library Juice’s founder, Rory Litwin, approached me directly to see if I had any thoughts, that sealed it. And here we are.

In that chain of emails, several progressive-leaning librarians expressed a great deal of skepticism regarding the idea that the Google Books fair use decision was actually “a victory for libraries,” on a number of grounds. Most of these rationales rested on a fundamental distrust of Google as a corporation, and of its motives for getting involved in scanning books.

OK, fine. No need to trust Google. No need to like or respect their motives.

But here’s the thing: however you might feel about Google or its motives, those feelings are irrelevant to thinking about the implications of Judge Chin’s decision for libraries.

Yes, Google undoubtedly plans to make money off these scans – though as the opinion notes, not by selling the scans in question, and also not by selling advertising around them.** But does that inherently make them evil from a library perspective? Don’t libraries do business with a lot of other corporations who do much worse things to information access than Google? (I’m looking at you, Elsevier…Wiley…Springer…) And what’s more, don’t libraries pay these corporations millions of dollars per year to provide their services? Google’s library partners never paid Google a red cent for scanning their books (which is not to say it was cost-free – only that Google didn’t charge libraries for its scanning service). So why is one acceptable, and the other not?***

Of course, there are many more substantial critiques that can be made of the Google Books Library Project from a library perspective. Among the most compelling, in my view, are the privacy implications for readers using the service (which are terrifying, if you think about it) and the frankly crappy metadata, which can’t help but impede any kind of research executed using the corpus (but especially the kind of “big data” work that is so in vogue these days). These critiques also appeared in the re-posted email thread.

But these critiques, as important as they are, are no more relevant to thinking about whether or not Judge Chin’s decision was a victory for libraries than the more subjective distaste for Google described above. They don’t matter either. Not here.

Judge Chin’s decision is beneficial for libraries not because it benefits Google (though of course it does) but because of the way the law works – that is, based on precedent. This decision sets the precedent that scanning books for the purpose of indexing – even books in copyright, and even without the copyright-holder’s permission – is fair use, so long as access to the actual digital versions of those in-copyright books is limited in particular ways. Judge Baer’s decision set a very similar precedent. And those precedents are immensely valuable to libraries who wish to go forward with digitizing and broadening access to their collections, whether they choose to do so in partnership with a corporation like Google, with a nonprofit like the Internet Archive, with a collection of their institutional peers, or with nobody but their own staff.

The nature of legal precedent is such that you don’t have to like the party that wins, and you don’t have to like what it’s doing, in order for that precedent to benefit you. Heck, I seem to recall that at least half of the cases we read in Intellectual Property & Information Law centered on pornographers, hate groups, and other unsympathetic protagonists – and those sketchy characters often won, but that didn’t mean the decisions set bad precedents from the perspective of library values and ethics. Often just the reverse.

Moreover, Judge Chin’s decision also benefits some library projects more directly – especially HathiTrust. Since HathiTrust is mostly composed of Google scans, it would have suffered a significant blow if the Author’s Guild had gotten its way, since it would probably have had to stop using all the scans of in-copyright works that Google had made, both for search and retrieval and, one suspects, for providing access to the print-disabled (though, I am not a lawyer – if Chin’s ruling had conflicted with Baer’s here, I’m not sure exactly what would have happened). Judge Chin’s ruling undoubtedly has the folks involved with both HathiTrust itself and the HathiTrust Research Center breathing a massive sigh of relief.

So yes, I’m sticking with my view, and the ALA’s view, and the view of many others, that Judge Chin’s decision was a massive victory for libraries. Because though the case was about Google, the decision is about more than that. It’s about the rights of information users – whether corporate, public, or individual – to make use of copyrighted works in transformative ways that do not imperil the economic well-being of the copyright holders, in a world where copyright terms last far longer than they truly should. For libraries, it’s about lowering the level of tension surrounding the legal risk of digitization, and of making secondary uses of externally-digitized works. It’s about the public good. Google may be massive, but in the context of this decision, it is only a tiny piece of what matters.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

*Seriously, if this lawsuit was a person, it would have just started the second grade.

**Most likely, as one of my dissertation research participants speculated, the benefit of Google Books to the Google bottom line will be indirect, through increased eyeballs and increased data-banks that help to improve the algorithm and sell advertising in other parts of the Google megasphere.

***Also worth noting: Google does not have, and has never had, a monopoly on these scans. Heck, that’s part of what the Author’s Guild was suing over – that Google was providing the scans to libraries, with few limitations on what those libraries could do with them. And hey look! The libraries almost immediately started pooling their scans (along with other scans they’d created under other projects), and made HathiTrust! It’s almost as though the Google scans are accessible through a provider within the library world, which might be more beholden to library ethics and metadata standards! Well go figure!

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1 Comment »

  1. Ms. Jones:

    In reply to your posting on the Library Juice blog, let me begin by saying that I do not oppose the Google Book Search ruling. I believe that you are generally correct in your conclusions, although your response misses (or perhaps dismisses) the fundamental concerns of previous correspondents from the progressive librarian community. Our “subjective distaste” for Google is not, as you imply, based on a visceral reaction to the spectre of a giant corporation arrogating the cultural record for its own monopolistic interests and venal delectation. We are aware that books scanned into Google’s servers are either in the public domain (expired copyright), or are legally accessible using only brief snippets of the copyrighted text. The HathiTrust, as you indicate, is a direct beneficiary of the GBS decision as is the whole of the library community. Google, as you discuss in your second footnote may derive “indirect” profits, but since this gleaning will be carried out behind the scenes of the Google “megasphere”, we should not be overly concerned. After all, such a development would be inevitable and eminently natural. Google is, after all, a profit making entity.

    Your assertions, as I have enumerated them above, are not—in and of themselves—objectionable. I think we are of the same opinion, at least on the superficial level where one readily accepts economic and social phenomena at face value. But if I may, I would like to go beyond our profession’s normative embrace of positivist reasoning and discuss the deeper philosophical implications of this watershed event.

    My critique of GBS is not directed at Google itself, rather I am focusing my aim on the context in which the GBS ruling has occurred, and is discussed, within the community of library professionals. As you stick by your original stance that the GBS ruling is a victory for libraries, I likewise adhere to my position that the lionizing of Google is a symptom of a greater and more immediate crisis in library and information studies. The rhetoric of your argument betrays many of the problematic elements inherent in a positivist interpretation which reduces a complex reality into an artificially binary question, best summed as: “Is the Google Book Search decision good? Or is the decision bad?” If the decision is good (and you aver that it is) then the negative forces of copyright over-reach have been defeated by Google, the truly progressive actor which has inaugurated a new age of scholarly and scientific progress. You also state that “more substantive critiques” of the decision are Google’s probable use of private user data and the “crappy metadata” that is the hallmark of such a quickly accomplished project. Even here, you believe that the implications of GBS are ultimately reducible to two easily quantified categories: user data and cataloging metadata. And one either abuses user data (or not), just like one either assigns proper metadata (or not).

    Your argument displays another familiar frame of thinking in LIS which is instrumental reason(ing). The GBS decision is a boon for libraries, and on that basis, we should not bother contemplating the role of Google in this matter at all. The massive implications of a corporation acting in the role of a public institution, or rather in the role our public institutions used to have, are as tedious as they are forgettable. In short, you are saying that the GBS decision works because it works. I wish I could be as sanguine as you are on this point, because I think there are a multitude of interpretations to the creation and legal confirmation of Google Book Search. One interpretation is that GBS signals our society’s continual transference of the public trust to corporate actors. GBS is a massive outsourcing of the preservation of the cultural record and the provision of access to it. Even if Google makes money on this venture, libraries “do business with a lot of corporations who do much worse things to information access”. And indeed libraries do, as does the ALA and its affiliated organizations, the editorial board of Library Journal, and individual “thought leaders” in LIS who prefer the comforting common sense of free market economics to a fundamental re-evaluation of our profession’s values. Our type of inquiry is not simply reactionary, nor is it “subjective” in the sense that progressive librarians are misled by their emotions and distrust of capital. Rather, we pose different questions than most members of our profession, such as: “Why are librarians consistently in support of free market solutions to problems that were once solved by collectives?” and “Why is technological solutionism now a normative value in our profession?” and “How is the influence of the information industry and its flows of capital changing the nature of our profession?” These are philosophical questions that cannot be solved by a new app, a new website, a new task force or another workshop. These questions lie at the very foundation of our profession and define the nature of our work in this world.

    In order to even ask these questions, one must go beyond positivism and enter into the realm of value, and investigate how we construct our professional ethics. Many librarians and LIS scholars have done this in the past—although many librarians are not aware of their work, probably because it lacks an immediate utility. It is my hope that this work will continue into the future and librarians will examine their beliefs, motives, and actions when acting in the public interest for generations to come. The alternative is that the public interest one day becomes interchangeable with corporate interest, and our profession as we know and cherish it—will be extinct.

    Sincerely,
    Michael Matthews

    Comment by Michael E. Matthews — November 22, 2013 @ 9:25 am

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