Harvard's Head Librarian Is Delighted That Google Books Will Expand Fair Use

Google estimates that there are about 130 million unique books in the world. And the search giant intends to scan them all by 2020.

After an eight-year, multi-branched legal battle, Judge Denny Chin came down on the side of Google Books in a major decision on Thursday, ruling that Google was within its legal right to digitize the books under the fair use provision of US copyright law.

Google started its digitization effort about a decade ago, but was criticized by authors and publishers for violating copyright, eventually spurring a class action lawsuit brought forward by the Authors Guild and the the Association of American Publishers. Chin ruled against the groups last week, in a move that's been hailed as a victory for fair use on the internet.

Robert Darnton, a celebrated book historian and Harvard University's head librarian, has followed the legal saga over the years— always as a strong advocate for the public's access to literature in the digital realm. I talked with Darnton about last week's ruling, as well as the history of fair use and the future of digital publishing.

Motherboard: What was your first reaction to the Judge Chin's decision?

Darnton: My first reaction was delight. I think that his decision will expand fair use and the legal understanding of the communication of literature in the right direction. So I think it's very much in the public interest. I believe that the courts are waking up to the fact that we live in a world very different than the world that existed before the internet—and therefore, that the legal understanding of communication has to be adjusted.

What about monopoly of information in the hands of one commercial enterprise? Is there a conflict when the public good is also in the interest of one private corporation?

I think that we do have general worry of the commercialization of libraries when they are digitized and made available. In that sense, yes there can be a conflict between the public good and the exploitation of the holdings of libraries. But I don't think this case involves that.

In the case of Google Books Search [a settlement proposed in 2011 that would have made Google the default owner of a work's digital rights if no one came forward to claim the book], Google attempted to create a library of millions of books and then to sell access to that library through subscriptions. Judge Chin said in an earlier case this would not hold up legally; it would be a violation of the Sherman anti-trust act. It would be a kind of monopoly by a commercial enterprise that would inhibit access to knowledge and to culture. And I thought at the time that he was absolutely right.

I think this recent decision does the same thing, but it's a very different decision because it's about fair use and the doctrine of fair use is the one that should be reinforced and, I would say, expanded in order to promote the public good.

You are involved in the Digital Public Library of America. Are there repercussions from the verdict for them?

I'm one of its founders and I sit on the board, and it is one of the most exciting efforts to bring literature within the reach of the entire citizenry. So I'm personally aligned with this cause.

It seems to be that the cause of making literature available to public will be strengthened by Judge Chin's decision in this case. Because the cause reinforces fair use, and fair use is a legal provision that has great promise for the DPLA and its attempts to make literature of the 20th century part of a digital library that will be available to everyone.

You're a book historian and have studied the print revolution and the Enlightenment. Is that where the seeds of the idea of fair use come from?

The doctrine of fair use was developed in the Copyright Act of 1976, so it's a modern and quasi-technical idea. But if you want to go all the way back to the Enlightenment and the American Constitution in its first article, section 8, clause 8, there is a provision for copyright to be used for limited times and to advance the progress of science and the arts. So at the founding of the American republic, there was this commitment to the public good and that was part of the creation of copyright in the first place.

What happened since then is that copyright expanded beyond these original noted concepts of limited time in the first Copyright Act of 1790—that was 14 years, renewable once. Since then, the time expanded to be the lifetime of the author plus 70 years. So books were excluded from the public domain for more than a century. And the notion of fair use was a way of limiting that because it wouldn't be possible under certain circumstances for libraries to make available to reader certain books without consulting the copyright owners.

So the concept of fair use is a quite recent concept, but it's related to the original inspiration behind copyright, which included a determination that literature should be used for the advancement of knowledge and the arts.

Today we're dealing with a lot of issues that have no precedent. Do you find it helpful to compare to the print revolution? Does that period provide a useful analog when trying to navigate these new spaces?

I think it does. I think that it's vital for us to understand the way the printed word became a force in history when we try to organize the way the electronic word acts as a force today. Of course, there must be boundaries and there must be legal constraints. We have to respect intellectual property, and, at the same time, we need to provide for the public good.

To strike the right balance is especially difficult in the electronic age, but that kind of balance was struck in the whole history of printing and copyright, so we can learn from the past even though we don't have precise examples that we can in some mechanical way apply to the present.

Whenever there's a new technology, it's a bit of a Wild West for a while. Are we nearing a time now when everything is being sorted out, or not?

I think that we will be involved in sorting out these issues for a long time. Technology will continue to change, and so people have to change the rules of the game—the legal constraints on communication—as the technology transforms the landscape. I think we are in for a period of re-conceiving laws and rights, such as the right of expression.

It's a very complicated world we are living in and changing very rapidly. But this case is one example of how the legal system is adjusting to the new technological conditions—and doing so for the public good.