[A] digital universal library would be even better than any earlier thinker could have imagined, because every work would be available to everyone, everywhere, at all times. And the library could include not only books and articles, but also paintings, music, films, and every other form of creative expression that can be captured in digital form.
But Google’s plan had a catch. Most of the works held by those research libraries are still in copyright. Google said that it would scan the entire book, irrespective of its copyright status, but that users searching for something in copyrighted books would be shown only a snippet. This, it argued, was “fair use” – and thus permitted under copyright laws in the same way that one may quote a sentence or two from a book for the purpose of a review or discussion.
Publishers and authors disagreed, and some sued Google for breach of copyright, eventually agreeing to settle their claim in exchange for a share of Google’s revenue. Last month, in a Manhattan court, Judge Denny Chin rejected that proposed settlement, in part because it would have given Google a de facto monopoly over the digital versions of so-called “orphan” books – that is, books that are still in copyright, but no longer in print, and whose copyright ownership is difficult to determine.
Chin held that the United States Congress, not a court, was the appropriate body to decide who should be entrusted with guardianship over orphan books, and on what terms. He was surely right, at least in so far as we are considering matters within US jurisdiction. These are large and important issues that affect not only authors, publishers, and Google, but anyone with an interest in the diffusion and availability of knowledge and culture. So, while Chin’s decision is a temporary setback on the way to a universal library, it provides an opportunity to reconsider how the dream can best be realized.
The central issue is this: how can we make books and articles – not just snippets, but entire works – available to everyone, while preserving the rights of the works’ creators?