I had a great time at the Internet Archive's 'coming out party’ for the Open-Content Alliance Open Library Initiative last night. I really admire the IA and Brewster Kahle and am delighted they are gathering steam and partners and the proverbial train finally seems to have left the station.
There has been significant attention paid to their open source- open access approach and it is well deserved. As Brewster said at the party last night, his concern about Microsoft’s and Yahoo’s participation diminished when he asked them if they defined 'open' to mean that even their competitors could have full access to use the project’s content anyway they wanted and they said “yes.”
But I do have questions about their legal strategy. They have decided to adopt an opt-in approach to building the library, which means that they will only digitize books once the publisher consents. Google has a similar program to digitize content, only they’ve chosen to digitize everything but only allow access to excerpts for books under copyright, and to allow publishers to opt-out if they do not want a particular work included. For their more aggressive approach, Google was sued by the publishers (twice!). They claim that since Google needs to digitize the entire book in order to make search-term-appropriate excerpts available, they are violating copyright law.
On this issue, I find myself on Google’s side. And this is not an unimportant point. The question of 'who bears the burden' is on the front lines of many of the current copyright war battles:
Orphan Works: The Copyright Office is considering whether to propose a solution to the orphan works problem-- where it is prohibitively expensive or impossible for potential users of a work to locate the copyright owner, even when they want to pay for its use. The proposed solutions to this problem are diverse but most involve some form of burden-shifting (either by requiring registration, creating a safe-harbor, limiting damages, eliminating injunctions, etc.) so that the owner of the work internalizes some of the costs of being hard to locate.
Inducement Post Grokster: Who bears the burden of determining whether the acts ‘Induced’ are infringing? Is it only unlawful to induce an act a court has determined is infringing, or is unlawful to induce an act you think is a fair use, but a court later decides is infringing? This matters because the former puts the burden on copyright owners to prove something is an infringement, and the innovator knew a court had ruled that way. The latter puts the burden on innovators to guess in advance whether what they’re inducing is going to later be considered by a court to be infringement. Smart people are talking about this. They’ve argued that the standard should only be met if you know what you're inducing is against the law, and for a fair use, you can never really know until a court has ruled on a particular use. Under this analysis, if you're inducing people to copy their CDs to use in their car, it's not inducement under Grokster until a court rules that copying a CD for one's car is not a fair use. This shifts the burden to copyright owners to prove uses are not fair, instead of to companies to prove (or hope courts will rule) uses are fair. It is a much more innovation- friendly standard.
Digitizing Content: Back to IA and Google. The opt-in/ opt-out question is a similar problem. Should Brewster wait around for publishers to agree to let him digitize a book, or should he just start copying and see what happens. I know there’s a lot more politics here than this analysis recognizes (Brewster’s a pretty smart guy, and an impatient technologist at heart who just wants to start scanning books and is flabbergasted that the law might prevent this), but it’s important to understand what is at stake. Conceding on whose shoulders the burden lies upfront may have long term consequences for the future of digital libraries.
As Alan Murray opined in the Wall Street Journal, “The Google Print Library Project is great for the world… One way or another [it] will get built.” But how many books will it include? What about books where you cannot locate an owner? What about innovations in how we access, use and read books? These questions will all be decided by victories and defeats on this new front in the copyright wars and burden-shifting looks to be the weapon of choice for those who are fighting for the greatest freedoms and access to information.
Kudos to Google for pursuing this strategy. Now if only they will jump on Brewster’s open-source open-access bandwagon, bringing their legal bravado and expertise, the Digital Library they will all create together will really be something amazing.