Good and Evil in the Garden of Digitization: Google and Fair Use

By Koehler, Wallace | Searcher, June 2008 | Go to article overview

Good and Evil in the Garden of Digitization: Google and Fair Use


Koehler, Wallace, Searcher


In a January 2008 Searcher article, Beth Ashmore and Jill Grogg discuss the Open Content Alliance (OCA) and Amazon.com's book digitization projects. They point out that Amazon and OCA did not invent book digitization and acknowledge the dragon in the corner--Google Book Search. As important and interesting as all projects by Google are, Google, by virtue of its size and leverage and because of its digitization model, has assumed dinosaur proportions with Google Book Search. An interesting history of its activities and reactions to them appears in an article by Ken Auletta for a January 2008 issue of the New Yorker. Auletta's interview with Eric Schmidt, Google's CEO, is intriguing. Schmidt recognized his critics and acknowledged that Google would be challenged, in part, because of its size. Auletta concludes his article and Schmidt's interview with a quote: "What kills a company is not competition but arrogance. We control our fate."

Google practices have raised the occasional hackle here and there in the copyright and fair use domains. Even back in 2003 (see Olsen), questions were being asked as to whether Google's caching policies represented copyright violations. In our book, Fundamentals of Information Studies, June Lester and I raise the question--as do many others--that Google's book digitization project pushes the very limits of fair use (2007: 303-4). I strongly suspect that fair use doctrine is insufficiently elastic to withstand Google's assault, at least as copyright and fair use are now understood. And in what some have seen as a quixotic exercise and others as a necessary challenge to "Googlepower," Siva Vaidhyanathan weighed in against Google Book Search back when it was still called Google Print. He worried that a finding against Google could destabilize intellectual property concerns. He questioned Google and Google's university and public library partners' rights to exercise fair use so broadly.

Win, lose, or draw, court decisions about the Google Book Project could have a chilling effect on the very concept of retrospective digitization (First Monday 2007):

   [W]hat I'm afraid of is that Google will certainly lose in court,
   and what will happen is courts will generate an indelicate view of
   fair use, a highly restricted view of fair use and will ultimately
   reign in a lot of future experiments. That's problem number one and
   that's the legal problem I have with Google's experiment.

The Google book digitization project has caused something of fervor, perhaps even a fire storm in the realm of intellectual property management. This issue is not solely for lawyers and academics; it can touch all of us in the information professions. On the one hand, Google may well provide researchers, users, and readers with an ever widening and invaluable resource. I just downloaded Thomas Greenwood's 1902 Edward Edwards. The "meatspace" copy of this particular PDF version comes from the University of Michigan. Thank you, Google. Go, Wolverines.

On the other hand, it also may mean that a single economic for-profit entity could gain effective centralized control over much of the world's information. Google's intent may be quasi-altruistic today, but, in the absence of oversight and regulation, that intent could morph into an Orwellian vision.

Centralization of Knowledge

The Google project to copy, digitize, and render documents to the world in snippets, if copyrighted, or full-text, if public domain, is the most recent manifestation of a long-held desire to centralize knowledge. Denis Diderot and other French Encyclopedists of the 18th century and Paul Otlet and Henri La Fontaine in the early 20th century sought to develop what H. G. Wells called a "World Brain" in 1938. The urge traces back as far as the 1st century B.C. with the Library at Alexandria and echoes in the development of national libraries in the 18th and 19th centuries. Sir Thomas Bodley can perhaps be credited with the idea of the deposit of newly published books at a central library with the library he established at Oxford in the early 17th century. …

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