By David Hansen, J.D., Scholarly Communications Intern
On Tuesday Judge Denny Chin set a deadline of mid-September for Google, the Authors Guild, and the AAP to work out a settlement for Google Books. The lawsuit, filed in 2005, seems to have been going on forever, and I wonder what, in the meantime, libraries can do to move forward. After looking at my own (personal) digital library, I wonder how the same principles regarding digitization might apply to institutional libraries.
Over the weekend I joined Google Music, a service that uploads my collection of music and stores it . . . somewhere. Somewhere in Google’s cloud. With it, I can access my entire collection of music from any computer. It’s great.
What is not great is my internet connection. I’ve had the service for about a week, and at this point only about half of my music collection is uploaded. Uploading large amounts of data understandably takes time, and since Google Music “store[s] a unique copy of Your Music on your behalf,” each and every file has to be transferred. Uploading these copies is generally considered “space-shifting,” which is something that Google –and the courts—have concluded is lawful “personal use.”
Apparently there are other approaches to what Google Music does. Ars Technica has published this article outlining the legal positions of Google Music, Amazon Cloud Player, Apple’s iCloud, and MP3Tunes. All three services provide online streamed copies of user’s music collections. Apple does so with licenses from the record labels.
Google Music and Amazon Cloud Player both seem to operate as a “digital locker,” making unique copies of the user’s own files. They presumably rely on time-shifting cases that make users’ actions lawful, and on the Cartoon Network v. Cablevision case (discussed at length in the Ars article) which held that Cablevision would not be directly liable for “publicly performing” the works in question, although it provided a DVR service that allowed users to record and retransmit their own unique copies of previously transmitted shows. The court in Cartoon Network placed some emphasis on the fact that each user only had access to their own personal and unique copies of the recorded shows.
MP3Tunes acts in a similar way, but with two differences: First, MP3Tunes will delete redundant copies when more than one user uploads identical files. This de-duplication process, while obviously more efficient than the Google and Amazon services, may conflict with the Cartoon Network case because each user accesses one centralized copy of their song, rather than multiple users accessing multiple ‘unique’ copies of the their own recordings. The second major difference is that MP3Tunes is currently being sued by EMI. Most of the suit focuses on the safe harbor provisions of the DMCA, and whether MP3Tunes can be held liable directly, notwithstanding the Cartoon Network case cited above, for “publicly performing” the works in question. But another major issue is whether space-shifting to the cloud is a permissible fair use.
For libraries that want to make digital copies of their print collections—i.e., space shifting—there are some limited exceptions in the law that permit copying for preservation (section 108 of the Copyright act). There is a need, however, to provide more complete digital access to the entire campus community beyond that which is contemplated by section 108. The University of Michigan (along with Florida, Illinois, and Wisconsin) has recently announced that it will be making available to campus users copies of orphan works, held jointly by the University of Michigan and HathiTrust, based on an assertion of fair use and its own risk analysis. The fair use argument relies on the idea that only works in each respective library’s print collection will be made available online to their users through the HathiTrust; one print copy, one digital access. No one is gaining access to books they don’t already own—just different, electronic access to those already in the print collection. The parallel to the ‘digital locker’ analogy that supports Google Music is strong, and the fair use argument for Michigan is bolstered even more by the fact that it isn’t in it for the money (as Google is).
This fair use assertion makes an end-run around section 108, but looking at the fair use factors, it is still appealing. Even more so for Michigan because a large part of the scanned corpus of the HathiTrust comes from Michigan, so for many books it would also be able to make the argument that the digital copies are not just practically the same books that are in its collection, but that they are identical copies of UM books, meeting some of the concerns of the Cartoon Network court. Other libraries have less to rely on in that respect, as fewer (or none) of their physical copies were scanned for inclusion in the database. But the fact that Michigan and these other libraries are only making orphan works available means that even if the fair use analysis is slightly off, there is still almost no chance anyone will be sued. The orphan works identification process that Michigan has used (detailed here) employs a more than reasonably diligent search for copyright owners, and leaves little chance that there are any rights holders available or willing to bring an infringement suit.
Risk notwithstanding, though, I wonder, what’s wrong with a library digitizing its entire collection (not just orphan works) under the space-shift theory? If the library takes those books out of circulation (perhaps in high-density storage) and limits online access to one user at a time (essentially, recreating the limitations of a physical visit to the library), the fair use analysis is still very much in the library’s favor. Google, in its amicus brief in support of MP3Tunes, makes the point well:
“[j]ust as the Supreme Court has held that ‘time-shifting’—recording television broadcasts for later viewing—is a lawful fair use, Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984), so too is ‘space-shifting’ lawfully acquired music onto digital music players or cloud-based equivalents, Recording Indus. Assoc. of Am. v. Diamond Multimedia Sys., 180 F.3d 1072, 1079 (9th Cir. 1999). A contrary holding would treat tens of millions of iPod owners who lawfully acquire their media as no better than those who misuse new technologies to pirate music and movies. “
Should space-shifting books be any different? These cases, admittedly, deal with space- and time-shifting for personal uses, and not for uses of educational institutions. That distinction may be critical in the end. But shouldn’t uses for “teaching . . . scholarship, or research” — which are specifically called out in the section of the copyright act that codifies fair use — carry at least as much weight as “personal use,” which has no mention anywhere in the act?
Finally, if a library can digitize its own library and make it available to patrons, can that library pool its digital holdings with other libraries, so that there is no needless duplication of digital copies? Storing these works in digital format is not cheap, and while my meager 20GB music collection has taken a half a week to upload to GoogleMusic’s “cloud”, the creation and duplication of millions of volumes of digital volumes is a monumental and inefficient task. Such a restriction, as amici in the MP3Tunes case have argued, would be incredibly burdensome to both digital libraries and users in general.