On the Essense of Libraries and Fair Use
Laura Quilter offers her view of libraries and the challenges they face:
I’d like to suggest two basic functions for libraries: One is warehousing and archiving physical collections; serving effectively as a museum of information. The second function is providing information services. Storage, and access.In the past and even today these two functions are, practically, inseparable. And each implicates a whole host of sub-functions many of which serve both masters — e.g., cataloging, which organizes the stored collections.
But these functions have been splitting and will continue to. Digitizing projects, like Google Print, will put the physical artifacts on the same plane with museum artifacts: nice if you’re a scholar and need the original, but for most people, the digitized content will suffice. [Google Print is not the only digitizing project, of course; there are plenty of others on smaller scales that have gotten less attention. I would be interested to get some examples of public-private partnerships because I suspect Google Print isn’t the only one.]
As more of the information content becomes digital, the subfunctions used to service both the storage and access functions will shift. Two examples: cataloging and preservation. Electronic information needs much less in the way of cataloging; full-text searching obviates a lot of cataloging needs. (No, not all; I believe in subject headings and hierarchical thesauruses — although I’m not sure they’re ultimately scalable if we’re talking about organizing all information.) Digital media have their own preservation problems, fairly distinct from those relevant in most special collections. The central problem in preserving digital media collections is shifting formats; the central problem in preserving physical collections is preserving the original artifact. ...
There is a whole lot more to her post. It's all very good and helpful. Please read the original.
I have a few more disconnected thoughts about why Google Print/Library would not want to test a pre-emptive fair use defense. In brief:
1) No two books are the same. Every book demands a different fair use analysis. How is Google going to prevent the distribution of an entire William Carlos Williams poem? Poetry and history do not work the same ways in fair use cases. And what if Google reveals the "heart of the work" (as in Harper v. Nation)? Big trouble, and different trouble. We are talking about millions of lawsuits here, each one unique.
2) What about lawsuits in France or Canada? Is Google going to block out French and Canadian users? What part of Canadian Fair Dealing shields Google Print? What is a French author objects to the frame or format of her work on Google Print?
3) What about photographs and illustrations? Is Google going to block them out from the books they offer? They have distinct copyright holders who might bring suit later. The publishers might not have the right to allow these images to be distributed via Google Print. See Tasini v. New York Times.
I have been saying for some time at fair use is becoming less fair and less useful every day. I fear that Google's plans would have snuffed it out completely. And remember, fair use is a local ordinance in a global economy.
See, this is what I mean by a copyright meltdown. So many core issues of copyright and fair use will have to surge through the courts. Everything would be up for grabs. This move would destabilize everything and endanger fair use and library use at their foundations.
In Washington and Brussels, Google lacks political power, especially compared to behemoths like Bertelsmann, Time Warner, News Corporation, and Harvard University.
Nothing good can come of this.