A (colossal) fight over fair use

The American Association of University Press, via its executive director Peter Givler, has written
to our good friend (and long-time Berkman affiliate) Alex Macgillivray
to quarrel about Google’s extraordinary effort to digitize books from
university libraries.  Mr. Givler’s letter, obtained by BusinessWeek, includes the following two
statements, among many others:

“The common mission that unites all our members is to help the
advancement of knowledge by making the results of scholarly research
known through their publications, …”

“Google Print for Libraries has wonderful potential, but that potential
can only be realized if the program itself respects the rights of
copyright owners and the underlying purpose of copyright law. It cannot
legitimately claim to advance the public interest by increasing access
to published information if, in the process of doing so, it jeopardizes
the just rewards of authors and the economic health of those nonprofit
publishers, like the members of AAUP, who publish the most thoroughly
vetted and highest quality information in the first place.”

I blame the copyright law more than the publishers, who are
understandably threatened (though I expected more from the university
presses, I have to say).  A copyright law that results in such two
statements in the same letter — and such pushback against a plainly
important and good effort by means of a partnership between academic
institutions and a corporation that is footing the bill for
digitization — strikes me as, at best, an imperfect set of rules. 

Both Lessig and JZ comment further, as quoted by BW:

“Some legal experts, such as Stanford law professor Lawrence Lessig and
Harvard professor Jonathan Zittrain, argue that the real rub in this
dispute lies in the copyright laws’ murkiness. ‘The fair-use section of
[copyright] statute is fairly flexible’ says Zittrain. ‘Google’s plan
doesn’t disrupt the market for purchasing the book, and in that sense
it should heavily favor them.’

“Yet, legal experts also agree that Google’s plan could open the door
for liability for potential copyright infringement, in the event of
future litigation, if the issues being raised by the publishers now
aren’t settled to everyone’s satisfaction. ‘For registered works it can
be up to $150,000 per infringement,’ says Lessig. ‘I don’t think any
judge would do that because Google seems to be operating in good
faith…but there’s a huge exposure.’

“In the end, this disagreement comes down to whether the interested
parties can come to a peaceful solution — or fight it out in the
courts.”

(WSJ and BW and NYT have more.)