Google Books and the Social (Justice) Contract
In channeling Judge Baer, Judge Chin at long last dropped the other shoe in the judicial effort to bring new information technology uses for copyrighted works fully in to the copyright regime. Congress has been slow to address the challenge of tapping the full copyright social utility/justice potential of these advances and it’s been left to the courts to sort it all out in the context of individual adversarial conflicts. Poignantly, when Jonathan Band asks “What [was] the Authors Guild fighting for?”, he also illustrates the tree-myopic/forest blind nature of the Guild’s position. What the Guild failed to see is that property rights fit into a larger socio-legal system: Yes your neighbor is precluded from trespassing on to your land but your ability to engage in whatever “private” activity strikes your fancy while thereon is limited by the legal system as a whole. Your land is individual private property, not an independent sovereign state.
Judge Baer reminded rights holders of this aspect of the social contract and now Judge Chin has made it clear to the Guild that this is not some narrow, eccentric application of copyright social utility. Property rights, including copyrights, exist to advance society, and to state the obvious, information technology has evolved our society. Like all other rights, customs, and expectations, however, whereas some aspects of copyright as previously envisioned fit comfortably into our new configuration others don’t fit at all. And when that ill-fit impedes important social progress modifications must be made, and if necessary, expectations altered.
The courts’ reasoning in both Hathitrust and Google Books moves fair use jurisprudence further toward the express consideration of copyright social justice in the application of the doctrine. As Kevin Smith notes, the judges in both cases have seized this opportunity to retrofit fair use, and it seems to me that these decisions push beyond questions of aesthetic and even functional transformation and pave the way for weighing social transformation in assessing the first fair use factor. I have also applied some of the legal conclusions drawn from Bill Graham Archives and other Grateful Dead archive projects to specific copyright social justice needs, for example, that of socially beneficent access to the literature of the Harlem Renaissance. Like some other historically and culturally important works, many of these books enjoy only marginal commercial market value and similar to the information harvested through data mining, “digital fair use” may be the only means by which to return these works to the general public. The social resuscitation of significant works through mass-digitization, and other uses that serve important and otherwise unattainable copyright social objectives, should be considered a purpose that satisfies the first fair use factor.
Authors and other copyrights holders would do well to finally get ahead of the information technology curve. The Authors Guild’s mistake was not so much in the effort to preserve what they considered to be their property rights or even in the effort to extract every conceivable drop of revenue out those rights, but rather, in failing to accept that in order for these rights to retain any value they must function as part of a thriving societal system or eventually forfeit the basis for legal recognition. In the analog world, the public’s access to most books remains largely dependent upon the vagaries of the commercial marketplace. Digital information technology has presented the opportunity to compile the world’s books toward the creation of global libraries accessible to every human being on a socially equitable basis. To believe that analog social inequity will be permitted to endure indefinitely in the face of digital information possibilities is simply unrealistic. Keeping in mind that the stimulation, perpetuation, and re-ignition of the cultural expression/dissemination/inspiration combustive cycle is the raison d’etre of copyright will enable authors to embrace digital change and as Gil Scott Heron sang, possibly even direct the change rather than simply be put through it.