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Library Journal:

Discussion of Google Scan Plan Heats Up on Blogs

Now this is why we love the Blogosphere. In launching his blog, University of Michigan's (UM) dean of libraries Paul Courant recently offered a spirited defense of UM's somewhat controversial scan plan with Google. That post drew quite a few comments, and a direct response from Siva Vaidhyanathan the author, blogger, and University of Virginia professor currently writing the Googlization of Everything online at the Institute for the Future of the Book; that of course drew a response from Courant. The result? A lively and illuminating dialog on Google's book scanning efforts.

"I am very glad that Paul has entered this conversation," Vaidhyanathan wrote on his Googlization of Everything web site. "His commitment to revolutionizing the role of the public university in the information ecosystem is inspiring." In practice, however, the Google/UM partnership, he adds, is also somewhat troubling. Among Vaidhyanathan's most pressing questions for Courant, the "library copy" provided for under UM's contract with Google. "How is the library copy, that electronic file that Michigan and others receive as payment for allowing Google to exploit their treasures, NOT an audacious infringement of copyright?" Vaidhyanathan asks.

"I must say that I am troubled that the author of a very sensible book about copyright is so enthusiastic about trashing Google," Courant writes, "that he is willing to give up on the uses, notably scholarly uses, permitted in the higher-numbered sections of the Copyright Act. As my institution's copyright lawyer says: 'FAIR USE, it's the law.' My institution believes that when we have Google digitize our holdings we do so under the law and in order to make uses that are not only lawful, but that are completely consistent with the undergirding purpose of copyright law."

Fair Use arguments notwithstanding, the "library copy" remains a bone of contention between litigious publishers and authors and Google. So much so that in its recent deals, such as with the Committee on Institutional Cooperation, (CIC), Google has reconsidered making copies available. Section 4.11 of the CIC/Google agreement states that Google will hold the "University Copy" of these works "in escrow," releasing them to the contributing libraries if the "in-copyright Work becomes public domain;" if the "library party has obtained permission through contractual agreements with copyright holders that includes the right to make a copy of the In-Copyright Work and to provide it to the CIC or Source CIC University;" or if "well established case law exists that in-copyright works can be copied and held" by the libraries without infringing on the rights of a copyright holder.

I remain pretty stunned that in all the writing about Google and Fair Use, very few people have invoked the troubling library copy issue. I am glad it's finally getting some attention. It should be clear that early adopters of Google's scanning service like Michigan got a very different deal than later entrants. Still, I am waiting for one law professor, lawyer, or anyone to defend the library copy distribution on fair use (or any other) grounds.

Anyone? Bueller? Bueller?

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Comments (5)

GoStanford on November 27, 2007 9:02 PM:

I'm very happy that Siva has raised this debate. U-Mich, Stanford and others university libraries DO have an obligation to explain all this to users, patrons, book authors, editors, illustrators, photographers, designers, publishers and others who worked so hard to bring a single book to life. Otherwise, we don't need any librarians as Guardians of Knowledge or in a sense, the library itself.

Interesting stuff, I look forward to going through the posts in this conversation. I assume while I'm doing so Siva, I'll find your response to explanation that the library copy falls under the fair use provisions of copyright law.

Siva Vaidhyanathan on November 28, 2007 9:36 AM:

Thanks, Dempsey. It's pretty simple. Fair use is an affirmative defense to an accusation of infringement. It's the defendant's burden to show that the copying of an entire work and distribution for commercial gain falls under some clear fair use precedent or fits comfortably within the rickety structure that Congress outlined in Sec. 107.

No one at Google has done that. No one arguing on Google's behalf has done that. No one working for one of the partner universities has done that.

Declaring, as Paul Courant did, that it's simply "fair use" actually harms fair use. Nothing about fair use implies a blank check for private corporations to copy and distribute. Even universities do not have a blank check to copy and distribute.

So basically, I don't have to show that it's not a fair use. Neither do the publishers when they get to court. Google must make the case themselves or be hit with a massive judgment.

Ben Vershbow on November 30, 2007 6:07 PM:

Fyi, I posted a little appreciation on if:book:

http://www.futureofthebook.org/blog/archives/2007/11/sparkles_from_the_wheel.html

Carlos Ovalle on December 2, 2007 9:59 PM:

I've never thought fair use was quite that simple.

It's a subject I've blogged about in various places before, but I enjoy Groklaw's discussion on the subject (and note the Golan v. Gonzales text):
Fair Use: Affirmative Defense or Right? Do I Have to Choose?
http://www.groklaw.net/articlebasic.php?story=20070907195435565

Now, I don't know that those arguments necessarily change anything in this situation. ^_^

On the subject of this post, have you had a chance to read ALA's opinion paper?
http://www.ala.org/ala/washoff/oitp/googlepaprfnl.pdf

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A book in progress by

Siva Vaidhyanathan

Siva Vaidhyanathan

This blog, the result of a collaboration between myself and the Institute for the Future of the Book, is dedicated to exploring the process of writing a critical interpretation of the actions and intentions behind the cultural behemoth that is Google, Inc. The book will answer three key questions: What does the world look like through the lens of Google?; How is Google's ubiquity affecting the production and dissemination of knowledge?; and how has the corporation altered the rules and practices that govern other companies, institutions, and states? [more]

» Send links, questions and ideas:
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» More about me

Topics

Like the Mind of God (22 posts)

All the World's Information (26 posts)

What If Big Ads Don't Work (10 posts)

Don't Be Evil (9 posts)

Is Google a Library? (43 posts)

Challenging Big Media (18 posts)

The Dossier (19 posts)

Global Google (3 posts)

Google Earth (3 posts)

A Public Utility? (19 posts)

About this Book (16 posts)

Other books by Siva:


Rewiringcover.jpg

Rewiring the Nation: The Place of Technology in American Studies (Johns Hopkins University Press, 2007)


The Anarchist in the Library (Basic Books, 2004)


Copyrights and copywrongs cover

Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York University Press, 2001)

Links

  • Sivacracy.net
  • if:book
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