By Jena Ardell
By Jon Campbell
By Alan Scherstuhl
By Tessa Stuart
By Roy Edroso
By Jon Campbell
By Albert Samaha
By Zachary D. Roberts
Authors Guild Inc. versus Google Inc. has ping-ponged through the courts for more than eight years. For what's known to most as the Google Books case, that timeline is probably about seven and a half years too many to hold most people's attention, even those who might nominally care about the issue of whether publishers' copyright claims trump the desire for online access to a vast trove of historical information.
But the case's mid-November dismissal by circuit judge Denny Chin could well signal the glorious dawn of a new archival age, with a massive upheaval in how researchers think of libraries, special collections, and the very notion of education itself.
Over the years, the original legal question — whether or not Google's attempt to scan and index millions of books was "transformative" and therefore protected as fair use — grew diluted by an appeal here, a settlement there. Even legal experts like Jonathan Band, a Beltway lawyer who specializes in information technology policy, offer a bit of a shrug when confronted with the latest update.
"Is this a landmark? I'd say 'no,'" Band says, noting the appeals the Authors Guild has left at its disposal. "We're still very much in progress here."
Still, even if the case does wend its sweet way to the Supreme Court, the Authors Guild's loss now appears almost inevitable. Google would then officially earn its right to continue to scan and archive other people's copyrighted works for the magical, transformative use of indexing and searching — ensuring future researchers, student or otherwise, of the continued ability to search the world's collective literary output for anything they can concoct a search string for. And it could eventually offer researchers a variety of alternative strategies when the databanks of the Mountain View mega-corp fail them.
The Google Books ruling is merely the latest in a long line of court decisions affirming the right of search engines (Kelly v. Arriba Soft Corporation, 2003), porn aggregators (Perfect 10 v. Amazon.com, 2007), and plagiarism detectors (A.V. v. iParadigms, 2009) to display image thumbnails and archive student papers as "transformative" fair use. But even if Chin's decision merely reconfirms the fifth (or is it sixth?) horseman of the intellectual property apocalypse, there is one difference with Google Books.
"In Kelly or Perfect 10, you were dealing with Web content," Band allows. "Whereas here, you're dealing with content that's not already on the Web. Obviously, the Authors Guild thought that was a huge difference, but the courts didn't. Why should it make a difference if the text is residing on the Web or a library bookshelf?"
But that one difference — the digital looking glass between the rearrangement of extant information and the collection and genuine curation of formerly offline fresh-to-the-'net data — is all the difference. The decision would effectively offer safe digital passage to new old artifacts.
This could be a key step in legitimizing the growing wave of digital institutions that rival traditional academic libraries as historical repositories, signaling a new threat (or promise) to the old educational order. Where esoteric texts, old letters, and millions of artifacts hide quivering in the privileged vaults of academe, the Google Books ruling implies a world of open research far from the closed stacks, sealed boxes, and hermetic rules of special-collections reading rooms.
Brewster Kahle's nonprofit Internet Archive (archive.org) has been building itself in just such a manner since it expanded in 1999 from its Web-archiving Wayback Machine to include the Prelinger Archives, documenting educational films and other celluloid ephemera. The Internet Archive has since become home to a virtually infinite supply of once-offline curios, from software emulators to its infamous collection of Grateful Dead live recordings, from Afropop Worldwide and Cairo Public Radio audio to, as of this writing, some 5.6 million texts, including (but hardly limited to) the public domain Project Gutenberg, orphan works without findable copyright holders, cookbooks, genealogies, and the 123,381-volume Biodiversity Heritage Library.
"The Google Books decision is the final phase of a coming-out right," Kahle asserts. "It shows the world moving in the right direction." And, he hopes, it will ultimately cover a range of yet-to-be-digitized materials, either by symbolic or legal precedent.
The decision's domino effect is about to get its first test, as Britain's House of Lords plans to update that nation's own copyright law, with British Library chief Rory Keating suggesting in the New Statesman that the British courts will look to the U.S. decision as an influence.
But putting aside libraries and mega-corps, the current series of fair use decisions could also strengthen several centuries of private collecting culture, offering a continuity between hidden-away secrets and public access in what is becoming an increasingly litigious and copyrighted world. It could prepare the way for a new generation of towering digital wonder-cabinets dotted across the virtual landscape, more wondrous than the taxidermied creatures and fossils and perfect mirrors of 17th century Danish collector and physician Ole Worm's Museum Wormianum, more eye-spinning than the bogus mermaid bones at P.T. Barnum's American Museum, more marvelous than the micro-miniature art carved in sewing needle eyes on permanent display at the Museum of Jurassic Technology in Los Angeles.