If It’s Transformative, It Must Also Be Fair, Right?
I missed this story when it broke in November, possibly because it got lost amid presidential transitions, parliamentary progroguings, and our rapid descent into international hobo-dom.
Google has come to a tentative settlement with US authors and publishers regarding its controversial book-scanning project. The best coverage of the issue I’ve found is in this KCRW podcast. Google, as you might recall, had partnered with several universities to scan the out-of-print books in their library collections, which it then made available in searchable text snippets through its Google Books service. The Author’s Guild and Association of American Publishers regarded both Google Books and the scanning process itself as copyright violation on an unprecedented scale, and sought relief in the courts.
These organizations have now agreed to a profit-sharing arrangement, allowing publishers and authors a slice of any revenue Google Books generates. The devils have yet to be hammered from the details. Parallel agreements with non-US authors and publishers have yet to be mooted.
I certainly hope that the deal strikes the right balance. The dream of being able to eventually call up any book ever written with a basic Internet search is an incredibly alluring one-provided of course that authors still retain their already-meager capacity to support themselves from their work.
One thing that struck me as extraordinary about Google’s claim was that their activities fell within fair use because they were “transformative.” The very fact that it’s transformative would suggest that it ain’t covered under existing law. The story underlines once again the horrible mess that is fair use doctrine, where the practical limits of the policy are spelled out only after litigation. Even then, the difficulty of applying precedents from particular cases means that nobody knows where the lines are. And then there are conflicts between jurisdictions. A Canadian judge just ruled, for example, that protesters against the Vancouver Sun’s middle east coverage were in violation of trademark by issuing a publication that parodied its logo and layout. This is based on what to my non-lawyerly mind looks like a bum 1990s decision involving protester’s use of the Michelin Man in a pamphlet. Other jurisdictions have gone the other way on that issue, ruling that trademark laws are meant to distinguish competing products and can’t be used to suppress protest or criticism. (Another question-what the heck a newspaper company is doing suppressing speech-is more philosophical than legal.)