~ 29. June 2010 ~
A few years back, Google decided our current understanding of copyright was outmoded, or at least inconvenient, and started scanning books en masse. They argued that their end product, a searchable index, was sufficiently transformative that the copying itself should be ok. Some major academic and public libraries cooperated, but publishers and authors’ organizations understandably saw things differently and sued, and now the conflict is being resolved in a settlement that, if approved, could provide some new revenue streams for Google, increased access to esoteric books for people outside elite academic libraries, and some compensation for publishers of out-of-print works for this increased use. All this with no change to the statute or case law.
So now, the Internet Archive (under its Open Library wing) is taking a similarly bold step, partnering with libraries to help provide users—any user, not just their own patrons, as I originally thought!—with electronic copies of out-of-print books. It’s clear that this is intended not to look threatening to publishers: the books are out of print, so they’re not depriving publishers of sales; they only lend one copy at a time, and the physical copy must remain idle while the e-version is lent; DRM (not something the Internet Archive is generally friendly toward) helps accomplish these limitations.
So, that all sounds great. But does the copyright law allow a library to make a copy of a book and lend that copy? Well, I don’t see where it does—Title 17 Section 108, the “library exception”, carves out some special rights for libraries but this would seem to go further. But doesn’t Google’s example suggest that just working with what copyright law clearly allows is a little dull? (I love the title of Open Library’s blog post here: “Small Moves: Open Library Integrates Digital Lending”. Small, indeed!)
It’s fascinating to compare this move to Google’s. According to the settlement, Google will become a kind of e-book vendor and is looking very comfortable in that role, imposing all sorts of features and opportunities, in other words, making sure that access entails all sorts of arbitrary limitations (the dedicated computer terminals with mandated printing charges surely being the most bizarre). The IA’s version—take a digital copy, use it for a prescribed period, pay nothing—is much more in the traditional library spirit. Will be interesting to see how this plays out!
And a scary thought: will the existence of the Google e-book collection (assuming that comes to fruition) endanger this sort of effort, since free electronic lending of these books would compete with Google’s product and therefore be seen as threatening to publishers who profit from the Google settlement?
Additional link: Resource Shelf post on the topic.
[EDIT] Oh, and here’s the best analysis I’ve seen so far, from the Go to Hellman blog: Internet Archive Sets Fair-Use Bait With Open Library Lending