It was almost 10 years ago that ALA members started to discuss Google’s plan to digitize the collection of several research libraries to create a book search database. I recall a lot of grumbling about the very idea: Surely this was a very risky thing for the research libraries to agree to, and might it be an infringement of the copyright law?
A lot has changed since then regarding the interpretation of fair use, thanks to the courts. The first factor of fair use—the purpose of the use—has become more significant in several court decisions, with an emphasis on transformative use. (Cases include Bill Graham Archives v. Dorling Kindersley Ltd. [PDF file], Campbell v. Acuff-Rose Music, Inc. , A.V. et al. v. iParadigms [PDF file], and Blanch v. Koons [PDF file]). This is a development that is good for the public interest (and libraries) because it places more emphasis on social benefits of a use, even when copying might be extensive.
In order to create a key word search index of the millions of books, it is necessary to copy entire works. The result is tremendous: Researchers can search and analyze an entire corpus of works by key word or phrase. The index helps people confirm bibliographic information, discover titles, find orphan works, and learn where they can purchase copies. Because the scans created files that are accessible to people with print disabilities, a huge swath of content can now be found for them. The effort also helps to preserve works for future generations.
Judge Chin’s ruling that Google Book project was a fair use should be celebrated by every librarian who believes in access to information, not to mention balanced copyright law. Not only is the Google Book project an example of fair use, it is a strong example of fair use—one that we can refer to when making copyright decisions, particularly concerning digitization projects. The Authors Guild has promised to appeal the ruling so there may be more litigation to come, but it is hard to imagine that another court would reverse given the clear analysis of why Google Books is a fair use and the string of transformative use cases that rightly inform this decision. However, if there is indeed further legal action on this case, ALA will continue its advocacy on it, both directly and through the Library Copyright Alliance.
2013 is turning out to be a good year for ALA and digital content policy. A year ago, many of us were skeptical that the Google Books case and library ebook lending could advance quickly, but the reality exceeded our expectations. We do have much more work ahead of us to ensure proper public access to information in the digital world, but we are pursuing our work with renewed energy and optimism going into 2014.
CARRIE RUSSELL is director of the Program on Public Access to Information in ALA’s Office for Information Technology Policy.