Unfacts Concerning the Google (Un)Settlement – Part 2

Continuing, and I hope ending, my discussion of certain often-repeated misunderstandings and misinterpretations of issues related to the Google Book Settlement and copyright:

Unfact: The failure of the Google Settlement spells the end of the “Alexandrian” dream of a great digital library open to all.

Fact: It does nothing of the kind. By denying Google its bid for total control, it may well make that dream more possible.

Discussion: Supporters of the Google digitalization project appear to believe that a private, for-profit corporation is the likeliest agency to establish and maintain a universal, free, public library. This is a leap of faith I cannot make.

Supporters have often spoken as if Google’s archiving project were the only one, on which therefore all hope depends. Surely they are aware of other ongoing digitalization projects that have no corporate strings attached and whose purposes and policies are open to view — such as Project Gutenberg.[i]

Yet, however impressive volunteer projects such as Gutenberg may be, I can’t help thinking that it’s the United States Government that should be founding and operating a digital archive/library, exactly as they founded and maintain the Library of Congress.

The project should be a Digital Library of Congress — using the skills and meeting the standards maintained by our national public library, and funded by Congress for the good of the American people. (If other countries develop such digital libraries, they can all meet on the Internet, in the greatest Alexandrian Library ever.)

Given the know-nothing, starve-the-poor-to-stuff-the rich rant now prevalent in Congress, it’s easy to dismiss such hope as mere wishful blither and say that we should give the job to the people who can do the job… That is, hand it to a hugely successful profit-making corporation dealing in information technology, which has proved its indifference to copyright law and its eagerness to control both the content and the availability of every book ever published in America?

I haven’t an awful lot of faith or hope in Congress, but given the choice, I’ll take Congress over Google, hands down.

(Just as I’ll take Google over Amazon, if it ever comes to that.)


Unfact: “Fair Use” is a clearly defined and clearly understood concept, which Google has observed scrupulously in its digitalization project, by delivering only “snippets” not full texts of copyrighted material.

Fact: It is even harder to determine precisely what Fair Use is than to determine than what “snippets” are.

Some useful definitions of Fair Use:

The primary definition, obviously, is the one supplied by the United States Copyright Office, copied below.[ii]

If you Google “Fair Use Definition,” Barron’s Law Dictionary has a useful discussion, and Wikipedia a long and interesting article.

Discussion: In my last blog, I stated what I recalled as the duration of copyright before the “Mickey Mouse” extensions. My Webmistress and friends at the SFWA emended this before the piece came out. Readers at BVC suggested further useful corrections, which then, in classic Internet fractal mode, led to anti-corrections, leading to hyper-corrections, and a whole wonderful garden of forking arguments, full of thorny niggles, and quibbles in full flower.

I fear what any attempt by me to define “Fair Use” might lead to. A Great Dismal Swamp, with a thousand opinions emerging like velvety green untrustworthy tussocks from the peat-black water… That’s where most discussions of Fair Use I’ve heard end up. I’m not going there.

I will stick to mere personal history, followed by a metaphor.

For decades, I or my agent have invoked Fair Use: either when I want to use a brief quote from a copyrighted book I’m reviewing or discussing or citing — or, conversely, when people ask my permission to use a quotation from my work. If they ask to reprint a whole poem or story, or use an excerpt of over a page or two, or a chapter of a book, then we request full and formal acknowledgment, including citation of the source and copyright information, and if their use of it encroaches on the salability of the original work, we ask a fee. If the quote is of a reasonable size (on the order of a few lines from a poem, a sentence or a paragraph from a story or book), I or my agent thank them and tell them they don’t need formal permission, because such use of a brief quote comes under the Fair Use provision of the rules of copyright; all we ask is that they say who wrote it and where it came from.

I believe that this process is exactly what the Copyright Office’s definition of Fair Use is intended to reinforce and expedite. Like so many not entirely precise definitions, it works fine — perhaps better than super-precise ones. It worked fine for me for forty years and is still working fine.

The problem comes when somebody, for whatever reason, redefines Fair Use to mean you can take pieces of any length out of a copyrighted work and do what you please with them without notifying or obtaining permission from the copyright owner, let alone arranging for appropriate compensation.

This irrational extension of a rational policy begins to reach Moebius-strip circularity when we find a corporation digitalizing an entire copyrighted book without permission and then invoking the doctrine of Fair Use to justify the procedure, since only portions of the book, called “snippets,” have so far been released onto the Internet.

It’s as if pirates captured a galleon as it sailed home from the Indies, then took a couple of sailors and a few pieces of eight from it, put them in a rowboat, and sent them home ahead of the ship.

Seeing it, the ship-owner shouts to the pirates, “Hey! You stole my ship!”

“Whatever do you mean?” say the pirates. “It’s just a little snippet of a rowboat and we didn’t steal it, it’s all yours.”

“But where is my ship?” cries the owner.

“Ship?” say the pirates. “What ship? Oh, that galleon? That’s ours. We digitalized it. See the skull and crossbones?”


[i] Project Gutenberg is a non-profit volunteer project that has for four decades been digitalizing texts that were never copyrighted or are out of copyright. As of December 2009, it was offering 34,000 items and adding fifty new e-books a week — mostly in English, mostly literary. The copyright status of all these titles has been ascertained and recorded. The Project doesn’t claim new copyright on titles in the public domain, as some digitizers do; but, if the Project Gutenberg trademark is used, certain restrictions apply — the text is not to be changed, or used for commercial purposes. (To evade these restrictions, all a user who wants to censor, alter, mash-up, or try to sell the text has to do is omit the header and trademark.) The few copyrighted texts so far included in the Project are distributed with permission of the copyright holder, and are subject to whatever restrictions the copyright holder may specify. PG texts are fully accessible (not the so-called “snippets” offered by Google) and are checked for completeness and accuracy.

The Project was started by Michael Hart in 1971. It is operated through the Internet by volunteers. In 2000 it affiliated with Distributed Proofreaders (DP), greatly increasing the number of volunteers and texts. A non-profit corporation, Project Gutenberg Literary Archive Foundation, handles the project’s legal needs and receives tax-deductible donations.

[ii] Definition of Fair Use from the Copyright Office:

“One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, Reviewed November 2009.”

Out Here coverUrsula K. Le Guin is a founding member of Book View Cafe. Her most recent book is Out Here: Poems and Images from Steens Mountain Country, co-authored with photographer Roger Dorband.

She contributed an original poem, “In England in the Fifties,” to Book View Cafe’s anthology Breaking Waves, which benefits the Gulf Coast Oil Spill Fund.



Unfacts Concerning the Google (Un)Settlement – Part 2 — 3 Comments

  1. In principle, I agree with you that the government, using something like the Library of Congress, is the obvious entity to create a complete, digitalized library. This is clearly the kind of project that is best done by all of us collectively, and the government is supposed to be our agent in such matters.

    However, I’ve been listening to the news this morning, and I despair of Congress addressing anything that really needs to get done in our society. It’s easy to see why some private companies would decide they had to act, even feel it was benevolent of them to act.

    But even if Google is really trying to act in all of our best interests (and I think Google tries hard not to be evil and does a better job than most companies), it’s still a big corporation and the people who now run it will not always be in charge. It’s not hard to imagine massive misuse in the future.

    I’d also add that the judge’s order striking down the settlement does not mean that a better settlement could not be approved. Perhaps if the plaintiffs can find a decent class representative that will take into account the interests of authors in general instead of merely making sure its own organization gets a large piece of the pie, they could negotiate a more workable deal, though necessarily one smaller in scope, with Google.

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  3. I’m not sure where I stand on the issue. I love using Google Book Search and both Snippet View and Preview seem to spur me to purchase more books. However, I agree that Google should have obtained permission prior to digitizing works.

    I’m a former librarian and avid library user; I often feel guilty about using libraries since I worry the sharing of works in libraries reduces authors’ pay. On the other hand, I used to select and purchase $60,000 in print books per year in my old job – one of my life’s greatest joys. I quit because (among other reasons) funds from my print book budget for my branch were diverted to centralized block e-book purchase the titles of which were selected by the vendor. Sometimes I notice a gap in the local public library collection and I use my own money to purchase a copy of the book and donate it (e.g., The Word for World is Forest). I gave up on the ‘Suggest a Purchase’ form – they just don’t have the money.

    I love the convenience and searchable nature of electronic collections, but I don’t trust their malleability, especially in the hands of governments or corporations.

    PS –
    Ms. Le Guin,
    Thank you for your great body of work. Your writings have given me many hours of reading enjoyment and so much to think about.

    My little one loves reading the Cat Wings books over and over and will soon – if I have any input on the matter – move on to The Earthsea books and after that perhaps The Beginning Place and then maybe The Compass Rose and after that …