How the Google Books (Fair Use) Case Helped Me Find My Passion

To celebrate Copyright Week, the American Library Association will join a number of organizations to exchange ideas, information and actions about copyright reform. From Monday, January 13th until Saturday, January 18th, copyright experts will explore different aspects of copyright law on the District Dispatch.

Guest blogger: Gretchen McCord

I am a copyright and privacy law attorney.  I used to be a librarian.  While working at a Big Law Firm, I was elected President of the Texas Library Association.  For my theme, I chose:  Libraries: Igniting the Passion.  I was enjoying my legal practice, but libraries remained my passion, I told everyone.  I’m not sure anyone ever asked me why.  The choir doesn’t often question the preacher.  Nor did I.

After too many years, I finally left the firm and established my own practice.  I now practice the type of law that I want to practice, for the clients I want to serve, and, generally speaking, under the conditions of my choosing.  And yet, still I said, “I love my practice, but it is not my passion.”

Then the biggest copyright fair use decision in two decades came down, and I was forced to ask myself new questions, and I found my passion for copyright.

Law is bargaining

We often talk about law in terms of “bargains” – each party gives a little so that each can gain something it wants more.  One person’s right to engage in any activity, by definition, limits the rights of others.  Consider the current scandal over the National Security Agency’s “spying” on American citizens.  We all want to be safe from terrorists, but we also want a right to privacy and freedom of speech.  We want the government to protect us, but we do not want to it to become Big Brother.

Copyright law, also, is a bargain.  It grants to an author (or more accurately, a copyright owner, who often is not the author) the ability to control the use of his works, but only to a limited extent.  In exchange, he must give up some degree of control so that others, and thus society, may benefit from those works.

The purpose of copyright law, per the Constitution, is to promote the production of new works, to encourage creativity, to promote the growth of the body of human knowledge.  The way we achieve this goal is by maintaining a balance between, on one hand, granting creators the right to control use of their works, for the purpose of incentivizing them; and, on the other hand, placing limits on those rights so that others can build upon the works.

The Copyright Act specifies limitations that are few and limited in scope.  For the vast majority of uses in which we engage without permission, we – anyone, and especially librarians and educators– rely on the doctrine of fair use.  The law provides four factors that must be considered in determining whether a use may constitute a “fair use.”  However, the final decision must be made in the context of the overall situation, with the ultimate question being whether allowing the use would do more to promote the purpose of copyright law than would disallowing the use.

The Google Books decision and librarians’ reactions

On November 14, 2013, an eight-year battle between Google and The Author’s Guild ended (though the war continues) when a judge resoundingly held Google’s digitization and use of twenty million books in its Google Books project to constitute fair use.  The library community, among others, rejoiced.

The court emphasized that Google’s uses were fair because the Google Books program “advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

I was thrilled with the decision and immediately sent an announcement to the Texas Library Association membership.  Librarians.  Those who, probably more than anybody else, value fair use and the need for well-crafted decisions providing guidance on fair use.

And I received comments from individuals who questioned whether this was a good decision, who feared that Google’s uses, and the court’s decision, would ultimately harm copyright owners.

I thought about how to address these completely unexpected responses.  I talked about the need to maintain balance in order to meet the goal of copyright law.  I quoted the court’s finding that Google Books actually benefits copyright owners by pointing users to places where the books could be bought.  “I’m still concerned about the potential harm to copyright owners,” they said.

I find my passion

How else could I explain?  I had explained the decision as best I could.  I felt responsible for explaining the reason for The Copyright Bargain, beyond encouraging the promotion of Science and the Useful Arts.  Why did the founders of this consider intellectual property protection so important as to include it in our very Constitution?  What was the underlying value that was so vital to them to make it worthy enough to address in this most important document?

Then it hit me:  Fair use allows us to be American.  Fair use is one of several principles of law that enact fundamental American values, right up there with the Bill of Rights.  (As a matter of fact, fair use cases sometimes invoke the First Amendment.)

We as a society place tremendous value on every individual in our society having an opportunity not only to obtain an education, whether formal or informal, but to have access to knowledge.  To be able to read a newspaper, to buy books or borrow them from libraries, to watch television and movies, to listen to music, to view masterpieces of the fine arts without having to travel to a far-away museum.  We greatly value our ability to share our own knowledge.  To discuss a news item, to write about a political issue, to teach others, to share our religious views.

A strong doctrine of fair use is an absolute necessity to absolutely protecting and enacting these values. 

If we were to allow copyright owners complete, or even near-complete, control over uses of their works, the result would be a society in which those who could afford to pay for education – and even access to the written word, the fine arts, music, software, the Internet – would have it, and others would not.  We would become the ultimate society of haves and have-nots.

This I am passionate about.

Yes, a copyright owner may lose money when others legally use its works without paying, but what it gains is being part of a society in which access to knowledge is considered a defining, core, base value of society.  What it gains is contributing to a society that values education, individual participation in government, and free speech.  Without a healthy doctrine of fair use, we risk losing those rights.

This I am passionate about.


GretchenGretchen McCord is an attorney, trainer and consultant at digitalinfolaw.com.  And she is still a librarian– once a librarian, always a librarian! You can follow Gretchen on Twitter @GMcCordLaw

 

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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