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.
Consider, for starters, the late Marion Stokes. Born in 1929, Stokes was a Philadelphia librarian from the ’40s through the ’60s, hosted a local progressive Sunday morning talk show called Input from 1967 through 1969, and — by the time she died in 2012 — accumulated some 140,000 VHS tapes worth of local and national television news. Far from a simple hoarder, the one-time chair of the Philadelphia branch of the Fair Play for Cuba committee believed in the power of information.
Traditional libraries are terrified of people like Marion Stokes. The thought of having to cope with an archive that might take literally as many years to index as it took to create is both blood- and budget-curdling. Filling four shipping containers, Stokes’s creation is scheduled for imminent delivery to Kahle’s Internet Archive. In fact, the digitization would be covered in part by an even earlier fair use ruling, encoded in the 1976 Copyright Act to protect Vanderbilt University’s Television News Archive, which charges $100 per half-hour to borrow tapes of old newscasts.
“I’ve got teenage kids and they’re going through learning to write critical essays, being taught they need to be able to quote and compare and contrast,” Kahle observes. With television news, by contrast, “there’s no way to hold onto it, unless someone puts a short snippet on YouTube.”
Again, it is the difference between the two sides of the looking glass. Collecting, in one of its most valuable senses, can remove an object from its natural context in a way that sometimes doesn’t seem logical, maybe even to the collector. Sometimes, the very ability to capture an old medium with a new technology (or vice versa) is reason enough, even if the reasons might otherwise seem unclear. And sometimes, even if the reasons might seem perfectly clear, entirely new value might be discovered later.
Upon creating their earliest silent films in 1894, Thomas Edison and his assistant W.K.L. Dickson made a discovery: There was no legal mechanism to copyright their creations. They could, however, register the films as photographic works, and so provided the Copyright Office with nitrate contact sheets in addition to paper prints of each individual frame. This instituted an industry-wide practice that lasted through a 1912 revision to copyright law.
Owing to history’s depradations and the subsequent disintegration of the contact sheets, these paper prints now provide the only remaining archive of many early silent films. “It is ironic that because of the Paper Print Collection, the film years before 1912 now seem better documented than the years immediately following,” historian Erik Barnouw said in a recent Library of Congress report about the harsh reality of silent film preservation. The jewels of the Paper Print Collection are available to the public for permission-free duplication and distribution.
Think, then, of the massing, silent armies of Marion Stokeses out there in the weird 21st century mediascape, each with her or his own motives, each navigating IP landmines to preserve delicate analog and digital eco-systems for reasons they might only be dimly aware of, and what they might be collecting. And then think of the cyber wilds, with new ephemeral methods of content transmission springing forth daily, bringing potential archives far beyond the imagination (or usage) of even the most soulful NSA aggregator-spook.
More than ever, notions of contemporary collecting are being challenged — partially by Google and the NSA’s implicit suggestions that it is a task better left to professionals, but just as much by the preceding half-decade of YouTube, Netflix, and Spotify, whose celestial streams separate consumers from the media they intake, offering soothing promise of never having to bother with all that messy metadata ever again. But in a state of ceaseless info-flood, creating a microcosmic, ship-in-a-bottle world of objects — collecting — is one way to surf the rapids. That’s how Noah survived, and Stokes’s Army surely knows it in their bones.
Whatever else their worth, collections are first and foremost works of the imagination, conscious or unconscious, conjuring a narrative thread to connect disparate objects. Collections reflect their collectors, from Ole Worm to Marion Stokes to the copyright-choked, password-protected JSTOR catalogue of academic papers that hacker and then-Harvard research fellow Aaron Swartz liberated some 70 gigabytes worth of precious, precious words from via a laptop hidden in a wiring closet — leading the Secret Service (among others) to persecute him, ending in Swartz’s January 2012 suicide.
The techno-dystopian winter is shaping up to be long and cold. Thankfully, there’s plenty to light on fire, and even more to read. But libraries and museums are nice places to hang out, too, public or private, online or off. There are usually some nice people involved with them. And if you can’t find a friendly-looking one nearby, you could do worse than to start your own.