I would like to weigh in on Judge Denny Chin’s U.S. District Court decision on March 21, 2011 to dismiss the amended Google Book Settlement, but I am blinded by something like prejudicial gratitude. Google Books, even in its current legally encumbered state, has over the last year insinuated its way into how I work. I believe the work is better for it, and this sense of the difference that Google Books is making on learning and scholarship has played little enough part in discussions of this decision.
At the same time, I support Judge Chin’s decision because it speaks so directly to the need for copyright revisions around fair use in the digital era. I support it because if his call for revisions is heeded, as it should be, this may be the first time that changes to copyright law are inspired, not by the coming expiry of Mickey Mouse’s copyright or related corporate interests, but by a sense of people’s rights and interests in fairly accessing knowledge.
In coming to his decision, Judge Chin felt compelled by current law to defend, in effect, authors’ monopoly rights in the case of orphan books (works still under copyright for which no copyright owner can be located). Yet if one compares the monopoly rights of lost authors to that of Google’s “de facto monopoly,” as Chin called it (because the settlement would have protected Google alone from damage suits over orphan books), Google’s would seem to do more to advance the goal the U.S. constitution’s copyright clause, namely, “to promote the Progress of Science and useful Arts.”
The Google Book Settlement would have provided (identifiable) readers and scholars with what they could use to almost certainly promote the progress of the arts and sciences through this unprecedented access to millions of books. Chin’s decision is not a victory, then, against the commercialization of this knowledge. It simply defends the commercial rights and interests of lost copyright holders against the commercial rights and interests of existing bodies (Google, publishers and authors). It is because this decision runs exactly contrary to the promotion of intellectual progress that it is time reconsider the copyright act on matters such as orphan books.
Google Books ability to promote progress is something to which I am feeling at the moment that I can attest, even with this service restricted to its current mixed bag of providing a snippet view, preview, and full view of a book, on the one hand, or no-preview on the other, for some 15 million books. Over the course of the last two years, I have been working on a book on what I call “the intellectual properties of learning.” The book was originally focused on the property theory of John Locke (which I introduced to this blog some time ago). In setting out the intellectual properties associated with learning and the learned, in a distinctly economic and legal sense, I have found myself drawn into the intellectual property formations of early medieval monasteries. With medieval history a new area of inquiry for me, Google Books is proving a serious contender for best supporting actor for an intellectual production.
Now to be sure, Google Books offers nothing over a very good research library in the hands of scholars working in their area of expertise. But for someone stepping out of his or her scholarly comfort zone, whether to try out a new idea or track down a historical lead, Google Books allows one to quickly get an initial footing that still ends up often enough in the library stacks. Google Books may offer but a preview of a book or provide a fully view to an entirely dated work, but that has been, in my experience, promoting the progress of my useful arts, such as they are.
It works like this: In the midst of reading about the abbot Bernard of Clairvaux’s prosecution of Peter Abelard at Sens in 1040, I am intrigued by how Bernard’s charges appear to involve Abelard’s violation of the Church’s intellectual property rights. Reference is made to Bernard’s letters and Google Books provides an 1889 edition of the complete letters in translation, where I can follow Bernard’s thinking, and see how this idea of intellectual property plays out. This edition of Bernard’s letters also reveals in the editorial comments on the letters how fresh the disputes have remained in defending Bernard’s orthodox monasticism against Abelard’s freewheeling scholasticism. And on it goes from there, with Google Books enabling one to zero in on a primary source to resolve a particular point, or in the midst of reading a work of great specialization in a journal article, to gain greater context and background from a book providing a historical survey of the incident if only in a “preview” of a few pages. And when it comes to the proverbial needle-in-the-haystack of scholarly verification for a quotation or citation, Google Books proves itself a handy metal detector, coming up with the missing needle, and then some.
Even as I am led back to the library for complete and more current texts and editions, I remain impressed by how a certain momentum of thinking builds up through this ability to preview sources and the literature with such precision and agility among so many works. Still, it will not be easy to pin down the value of something like Google Books in promoting the progress of the arts and sciences, and we have still to see how well it has worked for my book.
My experience with Google Books may only serve to remind us that more is at stake, with such court decisions and calls for legislative action, than legal principles. Certainly, following Judge Chin’s decision on the Google Book Settlement, a sound legal manner has still to be found for fully opening the door on this or any other universal library. Yet such decisions about the future of intellectual property should consider if and how these new digital practices are contributing to that desired progress of ideas.