Google Books Rejected: Taking the Orphans to the Digital Public Library of Alexandria
Frosio, Giancarlo F., Santa Clara Computer & High Technology Law Journal
The Library of Alexandria never existed as the sole comprehensive center of knowledge. Alexandria had three major libraries: the Royal Library of Alexandria, the library of the Serapeum Temple and the library of the Cesarion Temple. (1) The Royal Library was a private one for the royal family as well as for scientists and researchers; (2) the libraries of the Serapeum and Cesarion temples were public libraries accessible to the people. (3) The idea of the Library of Alexandria, however, is a different matter altogether. That idea powerfully expanded over the centuries to embody the dream of universal wisdom and knowledge found in a single place. (4) Digitization projects, such as the Google books project, are reviving the hope that that dream may come true. (5) Moreover, the ubiquity of the networked environment promises to open up access to this uber-library to everybody with a computer connected to the Internet. Today the entire collection of human knowledge may be only one click away.
Whether the dream of the Library of Alexandria will be achieved by the Google books project is highly debated. Recently, a court decision concluded that perhaps that dream is not within Google's reach at the moment. (6) In this paper, I will review the Google books project as both an opportunity to discuss the orphan works problem and to examine the copyright strictures impinging on digitization projects. In looking at the Google books litigation, I will investigate the sustainability of Google's fair use defense before delving into a description of the Google books settlement. I will then discuss the recent opinion from the Southern District of New York rejecting the settlement in its present form.
I will briefly discuss the dysfunctional relationship between copyright, public interest and technological advancement, recently exemplified by the Google books project. I will argue that the Google books settlement is an additional move toward propertization and privatization of culture, though admittedly furthering public interest as well. This time, privatization involves memory institutions. In warning against this privatization, I will discuss the counterpoising model of digital public libraries whose implementation is discussed in several jurisdictions, especially in Europe where the European Commission has set up the Europeana project. (7) Comparing the weakness of any national or regional approach against the global approach of the Google books project, I will argue that we need a global effort towards the creation of a World Digital Library.
II. THE "GOOGLE PRINT" LIBRARY PROJECT
Google's mythology tells us that "[i]n the beginning, there was Google books." (8) In 1996, Larry Page and Sergey Brin worked on a research project at the Stanford Digital Library Technologies Project to develop a "web crawler" to index, retrieve and analyze the metadata connections between books. (9) That same crawler, called BackRub, eventually inspired the PageRank algorithms of Google's search engine. (10) However, the project was dormant for a few years and revived only in 2002 with the launch of Google's search engine. After testing non-destructive scanning techniques, fixing tricky technical issues, and having exploratory talks with libraries and publishers, Google announced "Google Print" at the Frankfurt Book Fair in October 2004.11 In December 2004, the "Google Print" Library Project began, and shortly thereafter changed its name to Google books. (12)
The goal of the Google books project is to make available via the Internet a searchable database of books using the Google search engine technology to provide storage, indexing and retrieval of digital texts scanned from printed volumes. (13) Technically speaking, the core of the project is a relational database containing the scanned images of books and other publications. (14) An index is built of each word in the scanned text along with its relationship to nearby words. …