Georgia Harper is a legal specialist in copyright law and the Libraries Scholarly Communications Advisor. She has been closely involved in the Libraries partnership in the Google Book project since it began.
A district court in New York made a determination last Thursday about which there has been enormous speculation for nearly a decade now: Is it fair use for Google to scan tens of millions of books, many of which are still protected by copyright, and provide snippets of the text of those works to users of its search engine in response to their queries? Judge Denny Chin says it is. There it will stand for the moment. The Authors Guild says it will appeal to the 2nd Circuit in hopes of a reversal.
UT Libraries is a partner in the Google Books project, so we are elated by the decision. We have long argued that scanning for the reasons Google scanned our books, among many other libraries’ books, is fair use, but it is the nature of fair use that reasonable minds can disagree about its scope. So you usually hold lightly to your opinions. You never know when you’ll be shown to be wrong. But, there has been a rather nice string of court decisions since the mid-1990’s, beginning with the “Pretty Woman” case (Campbell v. Acuff-Rose), strengthening the fair use doctrine when the use is transformative — that is, when it adds something new, provides new context, or brings the work to new audiences for a different purpose. So, the question becomes, most importantly, “Is the use transformative?” If it is, courts are much more likely to declare it a fair use, assuming it meets the other criteria for a fair use. Judge Chin’s decision explores these criteria, and the weights of public benefit and harm to economic incentives in his decision, which I recommend you read.
It usually comes down to this: does the benefit to the public (usually a speech-related, First Amendment benefit) outweigh the harm to the copyright owner’s reasonable expectation of commercial exploitation of her work? I’m happy that for now, we are confirmed in our opinion that here, it does.
Thoughts by the University of Texas Libraries Scholary Communications Advisor and resident copyright expert Georgia Harper on Pam Samuelson’s article, “Reforming Copyright is Possible,” published in the July 9 edition of The Chronicle of Higher Education.
Pam Samuelson is a visionary copyright scholar, winner of a MacArthur Grant, and an optimist. She believes that despite the dim prospects for badly needed comprehensive copyright reform, we can take small steps to make big improvements, both within and outside the legislative process. Several of her proposals for libraries’ independent action exhort us to rely more confidently on fair use, engage in concerted efforts to search for owners of out-of-commerce works and identify them so that people may use more freely those for whom owners cannot be found, and work together to bring our out-of-copyright works to digital life. For example, she applauds the efforts to create a Digital Public Library that would provide public access to public domain works. She is right. All of these ideas are good ones that deserve our attention and our action.
When the Association of Research Libraries wrote a letter to the CCC expressing disappointment over the decision to help underwrite the lawsuit, CCC’s reply emphasized that no damages were being sought and maintained that their participation had the simple goal of “clarifying” fair use. This strikes me as disingenuous. There are more efficient ways to clarify fair use than litigation, and the CCC has a definite financial interest in the case even absent any request for damages. CCC’s aim here is not to clarify fair use but to narrow it dramatically, to their direct and immediate profit.
The argument developed here by Kevin Smith places the Copyright Clearance Center (CCC) in a harsh light – subvening copyright violation litigation in order to further restrict access options to intellectual property, thus securing its own role in the publishing community while attempting to prop up that foundering industry a little longer. As Paul Courant observes elsewhere (and thanks to Paul for the pointer to this article) it forces a reluctant higher education community to seek alternatives to its own and commercial presses – an outcome potentially fatal to the industry.