Google Digitization Case
A United States District Court in New York heard arguments from attorneys for Google and the Authors Guild regarding Google’s right to scan over 20 million books in the past decade, provide snippet looks at these books, and allow researchers to examine data and textual patterns on the Google books platform. Judge Chin’s line of questioning suggested he may support Google’s scanning effort under fair use. For example, the Authors Guild advocated by providing snippet views a researcher could theoretically submit an infinite number of keywords at different times and freely obtain the entire contents of a book. However, Judge Chin replied to this argument with a line of questioning that appeared highly skeptical that anyone would resort to such actions, especially since researchers viewing Google book snippets are directed to Amazon. At one point Judge Chin almost rhetorically queried whether the Authors Guild's counsel thought a person would rather cumbersomely view an infinite number of snippet views of a book or just purchase a nice hard copy of that book, which one could conveniently read.
Judge Chin also questioned the Authors Guild's counsel about why he thought Google’s digitization was not transformational. To which their counsel replied that the digitization may benefit society in some regard, but that the copyright holder should get to determine whether a work is displayed or not. Such a response seems counter to the core purpose of the fair use exception. The key word in the fair use principle being “exception,” in that a purpose of fair use is to allow non-copyright holders limited uses of copyrighted works. Thus, none of the four fair use factors give credence to allowing a copyright holder to determine whether his or her works may be used by a non-copyright holder. Instead, fair use is designed to grant permission for uses (especially transformational uses, which the Google digitization project appears to be) of copyrighted works by non-copyright holders. A more humorous moment in the arguments came when the Authors Guild's counsel suggested that the United States Congress should be allowed to decide this issue, and not the federal courts. To which Judge Chin deftly replied “does anything get done in Congress these days?” Further, it is not Congress’s job to issue judicial opinions, but its job is to legislate when it gets around to it. In sum, it is never a good idea to predict the outcome of a trial based on the line of questioning from a judge. However, from the information garnered during this judicial inquiry, Google has to be confident as it awaits a decision from Judge Chin. Here is a link to the trial transcript.
FASTR and PAPS
On September 10, 2013 Congress completed a briefing examining the proposed FASTR legislation that promotes open access to taxpayer funded research. This bill was proposed in the United States Senate and in the House . Both of these companion bills were referred to their chamber committees in February of 2013. On Wednesday, September 25, 2013, the University of North Texas became a signatory to the SPARC/COAPI open letter to the higher education community in support of the FASTR legislation http://www.sparc.arl.org/blog/opportunity-your-campus-support-open-access-encourage-your-provosts-sign-open-letter-support.
Also, on Monday, September 23, 2013 another federal bill was introduced in the U. S. House that proposes legislation that would permit open access to taxpayer funded research. This bill is titled the “Public Access to Public Science Act.” Here is the text of the PAPS bill: http://sensenbrenner.house.gov/uploadedfiles/public_access_bill.pdf The proposed FASTR and PAPS bills vary to some degree. For example: PAPS is relevant to four agencies, whereas FASTR is pertinent to eleven agencies; the way the proposed legislation is written it is uncertain whether PAPS applies to a final publication, in contrast, FASTR applies to an “author’s final manuscript;” PAPS mandates open access metadata, FASTR does not; PAPS offers a default twelve month embargo, FASTR requires OA as soon as practicable but no later than six months; interestingly both mandate green, not gold, open access. For a full comparison of both bills please see: http://cyber.law.harvard.edu/hoap/Notes_on_the_Public_Access_to_Public_Science_Act#Comparing_PAPS_and_FASTR