I just got around to reading the weekend’s Washington Post Google Print editorials, pro (Mary Sue Coleman, UMich Pres) & con (Nick Taylor, Authors’ Guild). Short editorials, and I suppose the format limits their ability to go beyond rhetoric (“access to vast libraries of content” … “this is a socialist plot!”) into any actual legal or policy nuances. But I was particularly disappointed with Nick Taylor’s editorial, in a few ways. Taylor wisely doesn’t actually make any legal arguments. Instead, his editorial boils down to the complaint that Google Print is lost licensing revenue for publishers. It’s okay, that he makes that point, because that’s actually the publishers and Authors’ Guild’s real (and only) point. I just resent the rhetorical slurs that are used to pad the actual argument.
- Red-baiting? “It’s been tradition in this country to believe in property rights. When did we decide that socialism was the way to run the Internet?” Man. Best response: Peter Suber, at Open Access News, who said:
Nick Taylor’s piece shows that he’s as clueless as I feared. First, he doesn’t understand what socialism is. Second and more important, he complains that the Google project will deprive him of revenue but doesn’t offer a single reason to think so.
- Taylor uses socialism as a slur in one breath, and in the next apparently would like to see — what? a government panel passing over each and every use of a copyrighted work?
Google contends that the portions of books it will make available to searchers amount to “fair use,” the provision under copyright that allows limited use of protected works without seeking permission. That makes a private company, which is profiting from the access it provides, the arbiter of a legal concept it has no right to interpret.
<shaking my head in disbelief> What? A user has no “right to interpret” fair use? Okay, but I think that government bureaucracy’s gonna be pretty large when every teacher, every forwarded email, every reviewer, every parodist, every sampler, every quoter, and so on, and so on, has to file permission slips with the “arbiters” of “fair use”.
Once again, if Google Print goes forward, that doesn’t mean that Google Print will be the only big database, and it doesn’t mean that Google is now the arbiter of, well, anything other than its own sweat-of-the-brow compilation of data (the words used in books and the order in which they are used).
As for the actual argument, yeah, there’s lost licensing revenue. Every use of a work, including every fair use, involves potential licensing revenue.
1. The total number of words, the presence of particular words, and the arrangement of those words in a work are, among other things, facts about the work. So are the author, the title, chapter titles, publication date, etc. Creation of an index to a work or multiple works includes gathering facts about the works. Conceptually, it’s quite distinct from the activities the Copyright Act is aimed at: copying and distributing works are clearly aimed at competitive copying, what used to be termed “piracy”. The copy(ies) that Google makes in the course of its scanning and indexing are technical copies, like RAM copies, and that would be an unpleasant route for courts to try to follow. (Although they have in the past; see, e.g., MP3.com, 92 F.Supp.2d 349 (SDNY 2000).)
The Google Print distributions are small pieces of the text, not easily framed with all the other pieces of that text, but instead contextualized with small pieces of other texts that match the search terms. Again, this isn’t the sort of competitive distribution which leaps easily to mind when one thinks of the exclusive right to distribute a work. [Note: this is true for Google Google Print Library program for copyrighted books, not the Google Print Publishers program, or Google Print for public domain works. I’ve seen several articles, like this one, that conflate or obfuscate the different programs.]
The derivative works right is aimed at translations, movie scripts, and the like. Again, not quite the right fit. I know some people will argue that an index is a derivative work, but treating derivative works in this way skirts too close to any and all fair uses. The caselaw shows this kind of interpretation, which is why the derivative works right is the most troubling of the exclusive rights, but I’m going to steer clear of that morass of a discussion for purposes of this footnote.
Performance and display are also aimed, obviously, at specific actions. Oddly, I think performance might be the best fit for Google’s use, in some kind of wierd philosophical way. A performance enacts a work, simultaneously interpreting it and creating the possibility of interaction with the audience. Interpretative performance necessarily demands recourse to information about the work, as well as the work itself. An index is also centrally about user interactivity, in a way that mere consumption of the
text work is not. An index, then, performs the work, interpreting it by recourse to information beyond the text itself (for instance, bibliographic data; retail or location data; or the meta-structures of the work’s organization, in paragraphs, sections, chapters, parts, pages) and opening it to dialog with the audience.
Ahem. Or not. I confess to some recent exposure to critical continental literary queer performative prepoststructuralist theory stuff.
2. Hell, you could sell a copy of a book with a separate shrinkwrapped license that charges a new fee for each and every individual use. (I think Adobe may already have a patent for that method of doing business, though.)