Last month, six days apart, two significant, seemingly independent events shook the digital world. On Saturday, October 10, 2015, The New York Times lost a significant portion of its historical archives to underground flooding. Less than a week later, on Friday, October 16, the Second Circuit Court of Appeals issued its landmark Google Books decision, finding Google's unauthorized scanning and digitization of more than 10 million books constituted "fair use," and thus did not infringe copyright rights of the objecting authors.
Google began scanning and digitizing of tens of millions of books more than a decade ago, with the assistance of major libraries that made their collections available to Google. Through its scanning and digitization of copies of millions of books, Google established a publicly available search function allowing Internet users to search free of charge to determine whether a book contains specified words or terms. “Snippets” of text are displayed containing the searched terms. Google also allowed participating libraries to download and retain digital copies of the books they submitted, under agreements requiring the libraries not to use the digital copies in violation of copyright law.
Certain authors who had not consented to Google's use filed the copyright infringement lawsuit asserting that their published and copyright-protected books were digitized without their permission. In its decision, the Court of Appeals found Google's uses of works were "transformative" fair uses and authorized under copyright law. The Court's decision ends nearly 10 years of court challenges to Google's attempt to digitize the world's book collection. Debate continues, however, as to the Court's reasoning and the impact of the decision.
Google is obviously pleased with the result, which was authored by Judge Pierre Leval, a heavyweight in copyright circles. In his ruling, Judge Leval also managed to take the judicial equivalent of a selfie. In 1990, prior to his appointment to the appellate court, Judge Leval had written an influential article entitled “Toward a Fair Use Standard.” In his article, Judge Leval proposed a new approach to fair use, the copyright defense that permits the use of a copyrighted work in limited circumstances.
Judge Leval had argued that fair use should be guided by whether the secondary use is employed in a manner or purpose that is different from that of the original work. That is, a secondary use cannot simply repackage or usurp the original work; but if it uses the original work in a manner that essentially treats the original work as "raw material" and transforms it to create new information, aesthetics, insights or understandings, that serves the purpose of enriching society and thereby furthers an important goal of copyright law.
The Supreme Court would later cite extensively to Judge Leval's article and transformative use theory in another fair use case, Campbell v. Acuff Rose Music. In that case, the Supreme Court found 2 Live Crew's song, "Pretty Woman," to be protected by the fair use defense because it transformed, by way of "parody," the Roy Orbison ballad, "Oh Pretty Woman." In his Google Books decision, Judge Leval has now relied on the Campbell case that, in turn, relied on his original article, effectively allowing the judge indirectly to rely on himself as his own authority.
Not everyone is snapping selfies, however. The Author's Guild is far from pleased. The Guild maintains that Google's unauthorized use of the authors' works has damaged, and will continue to damage, their potential future markets and income. According to a Guild-commissioned study, between the years 2009 - - before the e-book market was fully established - - and 2015, writing-related income of full-time book authors dropped dramatically, from $25,000 to $17,500, while writing-related income of part-time authors fell from $7,250 to $4,500.
The Guild has criticized the Second Circuit's ruling as "reductive" and is preparing to seek review of the decision by the Supreme Court. However, at this point, it seems like the authors will be swimming against the current.
But what has this all to do with flooding at The Times? It will not be lost on the newspaper that, as Google previously warned, unless physical copies of important documents are digitized, they risk eventually being lost to history. That is one of the purposes Google has suggested justifies its digitization projects and the newspaper is now living the cautionary tale.
The "Morgue," as The Times' archive department is known, is home to the paper's "dead" stories. It is located below-ground in the building next door to its Manhattan headquarters. Established in 1905, the Morgue was created to maintain the newspaper's archival library, which includes hard copies of fourteen decades of newspaper clippings and several million photographs - - the great majority of which have never been digitized.
On October 10, a news assistant was sent to retrieve a photograph from the Morgue to to accompany, of all things, an obituary. He discovered a waterfall streaming down from the pipes above, drenching portions of the collection. The damaged materials including boxes that held a yet-undetermined number of photographs. The assistant sent for backup but, despite the fast-acting team's ability to rescue most of the collection, some of it was destroyed. The Morgue's manager has not yet been able to quantify the full extent of the damage, but estimates that roughly 10 percent of the damaged photos may be beyond repair.
In his decision, Judge Leval wrote that the Google Books case had tested the boundaries of fair use. Those boundaries may be delineated more keenly when juxtaposed against the loss at The Times. Copyright law is said to serve the goals of expanding public learning and protecting the incentives of authors to create, which also is intended to further the public good. The works of authors who objected to the digitization of their books have now become part of the global archive, while a significant portion of The Times un-digitized collection has been damaged and now may be gone forever. Which of these circumstances may better serve the law's objectives will continue to be the subject of much debate.
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