Mass Digitization

Arguably the grandest of the grand mass digitization projects, the Google Book Search Project steps up the pressure to put full text online where anyone can readily access it. Once potential readers are able to learn about the existence and relevance of a text online, many (I would bet most) want to read that text -- online (or be able to print it out and read it). This is true for books, journal articles, essays, book reviews as well as music, images and audiovisual works. As we locate more and more of what we want or need using our computers, our tolerance for complicated obstructions to successfully obtaining the text, image, sound or audiovisual file diminishes.

Google Book Search also steps up the pressure on copyright law. Book Search relies on fair use to make the copies that make the connection for us between what we want to know about, and existing literature that might speak to our needs. Google asserts that it is fair use to digitize a work in order to index its words and subject those words to queries from Google Search users. As we all know, many publishers and authors objected to this characterization of fair use and, presumably unable to resolve the dispute through negotiation, brought lawsuits instead. The two Google Book Search lawsuits have the potential to change copyright law and policy in a dramatic way, perhaps one of the most dramatic effects mass digitization could have.

If the Supreme Court were to decide that digitizing for the purposes of adding a work to a search index were fair use, it would put an end to the legal ambiguity surrounding indexing copies and presumably the display of snippets of text surrounding search terms. As a result, the project to identify for searchers millions of works owned by publishers and authors when the contents of those works are relevant to users' search queries would continue, legally. But more importantly, the project would lift millions of orphan works out of obscurity and make them discoverable in the digital environment. By definition, there is no one to ask for permission in the case of an orphan work, and for most companies, legal ambiguity about the authority for indexing these works combined with the possibility of making a mistake about the fact of orphan status would prevent digitizing and distributing them.

Conversely, if the Supreme Court were to decide that fair use does not include within its scope the right to make a copy in order to index the work, the publishers and authors would be vindicated and could shut down Google Book Search until agreements were reached with them, but there would be no one to make deals for the orphans - and presumably no legal indexing of those works. As I guess I have made clear, I don't believe the legislature is capable of addressing orphan works in a way that would facilitate indexing. The failed legislation from 2006, the "safe harbor" proposed by certain publishers for users who mistakenly characterize their works as orphans (Safe Harbor Provisions for the Use of Orphan Works, 2007) and the bills proposed in this session make clear that copyright owners conceive of orphans as adoptable on a case-by-case basis only, not at scale, with all the in-depth investigation that the analogy to adoption suggests. Such an approach seems to me to be unworkable even case-by-case, and I am not encouraged at all that particularly the House bill will really address the problems that orphan works pose. In any event, no legislative proposal will accommodate the scale of operation Google has undertaken, so if the fair use argument were to fail, the orphans would languish.

Unlike many, I am optimistic about Google's chances of winning the lawsuits, all the way to the Supreme Court. I have written about this before (Harper, 2006), and the recent iParadigms decision further reinforces my optimism, but as I have also said on many occasions, I think they are likely to settle. Most litigants do. And while it's very difficult for all of us, not knowing what will happen to fair use and whether the gamble will have been worth it, or what the shape of a settlement might be, we can already see without any doubt that Book Search is changing the publishing world. Google is, behind the scenes, patiently persuading copyright owners that more open wins over less open, that there are tremendous audiences for not only their current works, but for their out of print works and works long forgotten. Google has succeeded in signing up every major U.S. publisher (Random House was the last to come on board) as a partner in Book Search and I think the reason is not that complicated: Google aggregates a monstrous amount of demand around what is building up to be an equally monstrous amount of supply. This is good. It is good for readers. It is good for writers. It is good for publishers, at least for now. And it is good for Google. It pushes libraries over a cliff, but, hey, we need a good push actually.

Google Book search accelerates the pressure the masses of freely available Web-based works put on copyright owners to abandon digital business models that impose a charge for access to and use of digital copies. Just as the New York Times and Wall Street Journal are figuring out how to charge for other things besides digital copies to recover the costs of production and make a profit, so will book publishers and authors. Not everyone will figure it out, but as some do, others will follow and new approaches will be tried. I do believe, however , that this fundamental shift in approach to digital business models will eventually throw into question every aspect of copyright protection, including the question of when it should end, but that's a paper for another day.