Some of the recent conversation about ebook fair use sparked by the Kindle-and-audio incident made me recall that Joe Esposito and I had written about this problem in Publishers Weekly more than two years ago.
We had a different catalyst for our thinking; at the time, we were wondering what the rules should be for libraries (or anybody else) to make, possess, or use a digital copy of a work they had acquired in print. The subject of concern then was the Google Library program: the partnership between some major research institutions and Google that delivered content (some of it in copyright) to Google to scan in return for digital copies for the libraries to keep.
At the time, Joe and I observed that Google and the libraries had no direction from the copyright owners about what digital rights came conveyed when they bought a physical copy because no publisher was making any clear statement of what they believed they sold in the transaction.
Since then, the ACAP project actually tried to develop a standard for communicating rights like this electronically, mostly on behalf of the newspaper industry, not book publishers. The standard for communication is, of course, a separate problem from determining what rights can legitimately or sensibly be asserted. And the newspaper problem is perhaps more complex. With newspapers, much of the value being purveyed is closely linked to timeliness. Forty years ago, The Rolling Stones sang “who wants yesterday’s papers? Nobody in the world”. They wouldn’t have said that about “yesterday’s books.”
What concerned publishers was the possibility that a Google scan could end up on a library server and be shared with a whole campus, network of campuses, a state, or even the entire public. Even imagination-challenged publishers could envision a day when one sold copy could satisfy a large network of demand now purchasing hundreds or even thousands of copies. What concerned Esposito and me was that publishers weren’t taking charge of their destiny. They were being made uncomfortable by what they saw as erosion of their rights, but they weren’t making any explicit statement about what they believed their rights to be.
I hope Yogi will consider it fair use to say that the Kindle-and-audio flap is deja vu all over again. The Authors Guild, with no audible objections (pun appropriate if not intended) from publishers, complain that the application of TTS technology to a legitimately sold electronic text constitutes a rights violation. If that particular limitation on the license granted with an ebook ever occurred to an author or publisher before, I’m not aware of it.
In the digerati community, there is frustration with the GBS settlement because it short-circuited a legal test and definition of “fair use.” Of course, Google and the publishers and the authors are each operating in their own interests, not society’s (by their definition of society’s or the digerati’s, neither of which might be ours), and the settlement apparently satisfies their interests. But at least before the settlement, Google made its position of what constituted “fair use” clear, with policies about when they would use snippets versus when they’d show larger blocks of text. Publishers were never so transparent. If they want to be credible as they fight for their rights in the future, now is the time to think these questions through and stake out ground that makes sense to defend.