New York City district court judge Denny Chin last month rejected a potential settlement in an ongoing trial which pits Google Books against the Authors Guild and the American Association of Publishers. The settlement would have allowed Google to publish online exerpts from out of print books that fall into fuzzy legal domain.
The Google court settlement only applies to what are called "orphan works," according to Laura Walters, Tisch Library's Associate Director for Teaching and Research. All books published in the United States before 1923 are considered in the public domain, and all books published afterwards are subject to copyright. Orphan works are works published after 1923 that are out of print, for which the copyright holder or author cannot be contacted. They make up a great number of the books Google has made available to the public.
"Google was planning on making a database of the orphan works and selling them as a subscription to libraries. This is what the court has put a stop to," Walters, who is also Head of Collections, said. "The judge said that the issue of orphan works is best dealt with through legislation, not the courts."
Google has been working to scan millions of books for its free digital archives, including those from the collections of many universities.
The recent rejection of the $125 million settlement deal is especially damaging toward Google's plans in digitizing the library books from major research institutes, as Google has already digitized 850,000 of Harvard's books and will no longer have access to the rest of the University's 17 million-volume inventory.
University ambivalence over whether or not Google is permitted to have access to their volumes is based on several concerns, which Walters believes are concerns that Tufts shares.
Besides the fact that Google has not yet set the cost of subscription, there are issues of privacy rights, according to Walters.
"Libraries are big on protecting our patrons' privacy," Walters said. "We keep no records of what patrons have checked out. So, if the government comes to us under the Patriot Act looking for what you have read, we can honestly say that we don't know. Google won't do that — they will keep a record of everything you have read. What will they do with that information?"
She added that censorship and monopolization may also be a serious problem.
"Under their proposal, Google could pull up to 20 percent of what is in the database," Walters said. "Let's say China wanted them to pull a work they didn't want their people to read, Google could do that. We don't mind that Google is doing this, but they shouldn't be the only ones allowed to digitize orphan works."
Indeed, when it comes to providing access to library material, most major universities would want to preserve the rights to their collections, Walters explained, which is why some of them — including Harvard, Columbia and Yale Universities, and the University of Michigan — have joined together into HathiTrust, a database that allows full-text access to anyone in the world. The system also allows the libraries to incorporate orphan works — but only a fragment of them — into their database, a move deemed eligible for use under the Fair Use Copyright Law.
"[The law] gauges whether something is fair use by four factors — two of them being educational usage and ‘market harm,'" Walters said. "Many contend, including myself, that there is no market harm in the digitizing of orphan works because these are out of print books and therefore not available for sale."
Some libraries, such as Columbia University, however, have interpreted the law differently.
"They have their full-text orphan works in their catalogue with a message that says ‘if you are the author of this work or the heirs, please contact us,'" Walter said. "But so far, no one has."
While Harvard is going an extra step by having their staff scan their books into the Digital Public Library of America (DLPA), Tufts has decided that further digitization is not necessary, though they have already digitized some pre-1923 works that were put up into the Internet Archive.
"Almost all the books we own are owned by the big research libraries," Walter said. "And they have digitized those books, so we don't feel any need to digitize books that have been done by other places."
Instead, Tufts will now focus on a unique project: digitizing rare books that are exclusive to the university.
"We found very rare pages from a book from the Middle Ages — prayer books that we found a couple of years ago in our rare books," Walters said. "What we did is that we digitized it and made a web page. Currently, a professor is working with students to translate it in a religion class."
The prayer books are not the only books that will be available for online consumption in the future, as Tisch is looking for other rare materials that will be accessible to virtually anyone with web access.
"We don't only plan to digitize these things. We want to make them findable for anyone doing a Google search," Walters said. "We're also building web pages of our own which will be useful for scholars and students who wish to know more about these obscure subjects."
Junior Usamah Suhrawardy, who works in the Circulation and Reserves desk at Tisch Library, felt similarly about library digitalization of books versus Google.
"I do think the court's decision to rule out Google Books is justified because it breaches copyright issues and they're clearly making a profit out of that," Suhrawardy said. "And I'd rather read the library's digital volumes, as they're doing it for their own cause and will also be more accessible to students who want to avoid the hassle of needing to buy the books online, or need to go to the library when it might be closed."
In the end, the move towards digitization is inevitable but it's not something that Google can have market rights over, Suhrawardy added.
Walters, too, believes that the future is going to be based on the authority of academic libraries and not for-profit companies.
"There isn't any market harm. We are not making money off of this. We are letting people see this for free," Walters said. "Academic libraries are going to say, ‘we can't find the copyright owner, there's no harm because it's out of print, and we're not making money, so we can digitize this and make that accessible.'"
