Library Juice » Elisabeth Jones’ Comments on the Google Books Fair Use Decision

"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 ..."