Appellate Court Ruling For Google Books: Fair Use, or Anti-Democratic Preemption?

After 11 years of battle between Google — now a unit of the just-named Alphabet conglomerate — and the Authors Guild,[1] a professional organization of published writers, the second US Circuit Court of Appeals has ruled that Google’s book project is protected under fair use [paper trail].  Responding to this judgment, the American Library Association (ALA) announced that “Libraries laud appeals court affirmation that mass book digitization by Google is ‘fair use’.”[2] Larry Alford, president of the Association of Research Libraries (ARL) concurred, stating that ”ARL applauds this victory for fair use regarding the Google Books project, which involved partnerships with many of our libraries.”[3]

Is this outcome truly a cause for celebration? For whom is this a victory? What this verdict actually signifies may be understood only by clarifying the nature of the conflict; and analysis needs to go beyond “access,” as if “access” constitutes an absolute virtue – the be-all -and-the-end-all.

Google’s search engine has long been the premier gateway to the Web, granting Google a dominant market position online (around 60+ percent of all computer Web searches). This has enabled Google to seize a disproportionate share of Web advertising. However, Google’s dominance is not guaranteed. Competition to control the Internet has intensified between Google and other Web giants — Amazon, Facebook, and Apple. From Google’s perspective the question of how to maintain its market position could hardly be more vital.

Its superb search technology — its secret algorithm — isn’t enough, in itself, to ensure supremacy.  An additional element is also required. Only by protecting and, if possible, expanding its user-base, to feed streams of data into the company’s means of production — its search algorithm — will Google’s dominance in Web advertising be protected. Expanding its user-base in turn may be accomplished only by introducing, or taking over, services and content with which to draw additional users, and with which to target ads at what the industry calls “most-needed audiences.”

While Google doesn’t claim that the company is in the content business, in fact, content is a precondition of Google search business. Initially, Google built its search engine opportunistically, to navigate already-existing web content. Soon, though, the company recognized that it needed to expand the pool of coveted Web content over which it exercised jurisdiction. It has developed or bought a mountain of content and destination sites, including YouTube, Google Earth, Google News, Google Places, Google Finance and Google Play, and from travel to shopping and local commerce.[4]  And, in fact, its owned sites are more profitable to Google than unaffiliated ones. Within this steadily widening context, early on, Google turned its acquisitive eye on research libraries.

Libraries presided over a tempting reservoir of quality content. Substantial funds would be needed for libraries to transform their collections into electronic information utilities as an independent matter, however; and, throughout the entire period from Reagan through Obama, prevailing policy priorities denied them hope of securing financial support sufficient to modernize their operations according to libraries’ traditionally more democratic and noncommercial principles.

Google went after research libraries as a “partner”; but its mission was more nearly pillage. To organize this segment of the world’s information into a new profit source Google identified a strategy for annexing virtually this entire domain. It hit on the idea — the pretext — that, unlike fiscally challenged libraries, Google would provide “universal access to information.”

Universal access is an admittedly crucial objective.  A democratic information system, however, must hold to additional and equally crucial requirements.  One is for accountability, to make sure that the system of information provision serves societal rather than private interests.  Another is for preservation, to make sure that access does not shrivel up going forward.  Both of these essential features of a democratic information system face grave counter-pressures today, not least, from Google itself.

Google didn’t pick random collections of content. Instead the company’s venture into the world of literature started by digitizing millions of books from some of the most venerable research libraries — Harvard, the New York Public Library, Stanford, the University of Michigan and Oxford — with plans to expand to libraries around the world. These are highly curated collections of books which have been built by cultural workers over hundreds of years, and with considerable public funding.  As Google devoured these library collections, the company also invisibly absorbed the countless hours of labor that had been expended by the cultural workers who had built those collections – without paying a dime in compensation and with few commitments to any kind of democratic accountability beyond “access.”

As they yielded up their precious collections, library administrators echoed Google’s self-serving rhetoric lock, stock, and barrel.  Mary Sue Coleman, president of the University of Michigan, said, as she announced the partnership with Google, “We believe passionately that such universal access to the world’s printed treasures is mission-critical for today’s great public university.”[5] Duane E. Webster, executive director of the Association of Research Libraries said, “at a fundamental level, this is a very important move forward for the public’s ability to access scholarly information……This enrichment of resources will entice even more users to those libraries that see themselves as learning commons.”[6]

Some administrators doubtless thought that it would elevate their status among libraries to be seen as working with the “coolest” company in the world.  Some may have genuinely believed that access should be the supreme consideration and simply accepted that, because libraries didn’t have the technical capacity or funding to support mass digitization, they should accept Google’s terms. In principle, just the same, it is vital to underline that libraries could have digitized their own collections and bypassed Google.  That they did not testifies to politics rather than their own capabilities.  Because US federal, state, and local governments have systematically undernourished our public institutions, libraries have been pressured to open to capital. In the case of academic libraries, since the early 1980’s, the percentage of library expenditure in universities has halved, from as high as 3.7% to merely 1.8%.[7]

Worse, few library administrators understand or were even aware of the devastating long-term social and cultural consequences of relinquishing their institutional role and transferring the custody of public culture to capital. Even before Google was established, libraries were giving up control of their collections to commercial venders, as they shifted to a licensing model instead of ownership for journals, newspapers, government documents, and more recently, e-books and archival material.

Despite informal and formal backing from libraries, however, Google’s road to conquer the world of literature still faced stumbling blocks. As Google began to scan and digitize millions of books, in 2004, the Association of American Publishers (AAP), a trade association for publishing industry, and the Authors Guild of America — nearly the entirety of professional copyright holders — separately sued Google for copyright infringement.

The nature of these lawsuits is most often painted as if Google were fighting on behalf of the public to improve access to information. However, the true nature of the case was neither about Google’s supposed public mission nor AAP’s and the Authors Guild’s challenges to Google’s commercialization of public culture. Google hoped to extract profit from the world of the book; and AAP and the Authors Guild wanted to secure a piece of Google’s rising profits from what they deemed their property. The legal battle between Google and AAP – which, until pressed by Wal-Mart and then by Amazon, had been able substantially to control the book as a territory of profit[8] — is more indicative of inter-capitalist competition between an existing and emerging information industry over an emerging field of accumulation. Tellingly, in 2012, AAP conceded its legal battle and decided to settle with Google — alliance, rather than a sustained fight, would best ensure future profits, given Google’s sway over the burgeoning Internet marketplace.

Until only a few weeks ago, the Authors’ Guild continued to pose an obstacle for Google; but the Court gave the company a green light.  It did so, perversely, by interpreting the fair use provision in U.S. copyright law to allow Google’s book scanning to be seen as a transformative work.

Fair use is an exception in US copyright law which permits the use of copyrighted work without the permission of copyright owners. This provision has often been exercised by libraries and academic institutions as it allows for them to provide access to copyrighted materials for educational purposes; however, long before Google, the use of copyrighted works under fair use in libraries and academic institutions for educational purposes has been increasingly attacked by commercial publishers as the industry strove to tighten its control. The fair use exemption, as has been stated earlier, has been further weakened, as libraries move to a licensing- rather than purchasing model for their collections — a model in which fair use has no standing. On the surface, the court verdict on Google’s case vindicates an enlarged fair-use provision. However, it does so not on behalf of public culture or democratic accountability, but of a gigantic for-profit corporation. Its real effect is to align the law with a corporate scramble to reorganize and enlarge the information market.

Thus, this new verdict is far from a victory for the public; rather, it is a victory for digital capital and for the continuing takeover of public culture to serve proprietary commodification projects. As Google boasts, this is indeed likely to widen “access;” but only at the very steep price of tightening corporate control over information.[9]

Fair use is a right that should attach to persons — not to corporations. A just and equitable outcome for the public would have been for the Court to require Google to relinquish its digitized library collections to libraries, and to order libraries to take back their caretaker role in the system of information provision. The actual outcome cut in an antagonistic direction. While the Authors Guild vowed to take the case to the US Supreme Court, it is far from certain that the verdict will be reversed. This verdict, therefore, is not an occasion for joy, but for the mourning this latest blow against libraries’ place in the democratic provision of public culture.

 

[1] Authors Guild, Inc. v. Google, Inc. Wikipedia.

[2] ALA news, “Libraries laud appeals court affirmation that mass book digitization by Google is ‘fair use,’” October, 16 2015.

[3] Krista Cox,” Libraries Laud Appeals Court Affirmation That Mass Book Digitization by Google Is ‘Fair Use,’” Association of Research Libraries, October 16, 2015.

[4] Dan Schiller and ShinJoung Yeo, “Powered by Google: Widening Access and Tightening Corporate Control,Leonardo Electronic Almanac 20 (1), 2014.

[5] Barbara Quint, “Google and Research Libraries Launch Massive Digitization Project,” Information Today, Inc., December 20, 2001.

[6] Scott Carlson & Jeffery Young, “Google Will Digitize and Search Millions of Books From 5 Leading Research Libraries,” Chronicle of Higher Education, 51(18) 2005.

[7] Library Expenditure as % of Total University Expenditure

[8] Gary Fields (2004). Territories of profit: communications, capitalist development, and the innovative enterprises of G.F. Swift and Dell Computer. Stanford, Calif: Stanford University Press.

[9] Dan Schiller and ShinJoung Yeo, “Powered by Google.”

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