04 October 2005

Ignoring that Fifth Fair Use Factor

A few days back, I remarked that "The last time I checked, though, 'administrative convenience' was not one of the four fair-use factors set out in 17 U.S.C. § 107" (emphasis and link in original). Apparently, there's a large Silicon Valley-based search engine enterprise that understands this.

Some of this is not entirely surprising. For obvious business reasons, Yahoo! could not let Google be the only source of "free e-texts." The difference is that Yahoo! is doing things right.

A consortium backed by Yahoo has launched an ambitious effort to digitize classic books and technical papers and make them freely available on the Web. One of the Open Content Alliance's first projects will be to digitize the approximately 18,000-title collection of classic fiction and non-fiction American books owned by the University of California, the group said. That could be completed by the end of next year.

The consortium includes Adobe Systems, Hewlett-Packard Labs, the National Archives of the U.K., O'Reilly Media, the Prelinger Archives, the University of California and the University of Toronto. The announcement of the consortium comes amid furious debate about a similar project called Google Library, in which the Mountain View tech giant is scanning and digitizing millions of books at select libraries. Google's effort differs, though, because it intends to digitize material regardless of its copyright status. The members of the Open Content Alliance say they will scan copyrighted material only if they have the permission of the rights-holders.

Michael Bazeley, "Consortium to Digitize Classic Books for Web," San Jose Mercury-News (03 Oct 2005) (emphasis added; fake paragraphing removed for clarity).

This announcement has just radically changed the dynamic of the Author's Guild v. Google suit. Google can no longer claim that it would be "completely impracticable" to obtain permission before digitizing works, as a competitor—supported by some pretty heavy-hitting partners, particularly including the UK's National Archives—has stated outright that it will obtain all necessary permissions. Even more interesting is that one of the members of the OCA not named in this particular story is the Internet Archive, the brainchild (or perhaps love-child—and I mean that in a positive way) of Brewster Kahle. I find it rather interesting that, although there were representatives of Google and several members of the OCA at the Orphan Works Hearings (and several others provided written comments), only one set really seemed engaged at the hearings… and, as is now apparent, only that one set listened.

So, in the end, what does this mean? I don't suggest that all authors suddenly stop using Google and use only Yahoo! for their searches. The two search systems have different purposes, scopes, and utilities. After all, Google is hardly the first (nor will it be the last) commercial Internet entity to see an opportunity for what it (wrongly) perceives as "free content laying around waiting to be exploited" in libraries! Further, unlike a certain Seattle-based retailer, Google's counsel can spell "Tasini."1

  1. Perhaps this bit of sarcasm isn't entirely fair; that individual has probably learned how to spell "Tasini" by now, after I was forced to provide a lesson (and citation) during our first conversation a couple of years back concerning a disturbingly similar program.