I love to browse the Q section of the stacks - growing up on Bill Nye the Science Guy, I have a healthy appreciation for the general sciences! This interesting book really caught my eye, as there are a wide variety of images made me want to learn more about it. Published in 1636, here is Delicia Physic-Mathematicae, a book about scientific recreations and ideas for inventions. Daniel Schwenter (Schwender) is the author of this book, and he was also a mathematician, inventor, poet, and librarian!
It’s not so much that history is happening in the Second Circuit, it’s that Judge Lanvin, writing for the court, has explained “The Law of Fair Use” clearly and comprehensively, whle acknowledging that it can happen even when the use is for commercial purposes.
If you want to read the whole thing, here’s the case - in sum,
Google’s digital copy of the copyrighted works in question provides a “search function, is a transformative use [and] augments public knowledge [but is not] a substantial substitute for matter protected by the Plaintiffs’s copyright interests in the original works or derivatives of them.”
What’s important for everyone, and particularly relevant for transmedia creatives, fandomers and anyone who’s been inspired by something else and gone on to create a follow-on work?
While authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.
[The crucial question re Fair Use is ] how to define the boundary limit of the original author’s exclusive rights in order to best serve the overall objectives of the copyright law to expand public learning while protecting the incentives of authors to create for the public good.
As the US Congress regularly and continually examines changing our copyright laws, these are two things that are very important to keep repeating.
Since we’ve had discussions here about what “transformative works” actually are, and how they differ from “derivative” works, the Court’s explanation is very handy: "The word “transformative” cannot be taken to literally as a sufficient key to understanding the elements of fair use. It … does not mean that any and all changes to original text will necessarily support a finding of fair use . … Derivative works generally involve transformations in the nature of changes of form. …“
A further frequent topic here has been whether fair use can ever exist when the follow-on user (like Google Books was here) is a commercial entity and/or making a profit with the follow-on work. The court said that while a commercial motivation can weigh against a secondary user, “we see no reason why Google’s overall profit motive should prevail as a reason for denying fair use over a highly convincing transformative purpose.” Whether a follow-on use is commercial or adjacent thereto is less important than the harm the secondary use can cause to the market for, or the value of, the copyrighted work.
If there is no (actual or potential) harm and the copied material is used for for new, transformative purposes, Fair Use is likely.
Even where there is a loss of a sale - or even multiple sales - of the copyrighted work that fact “does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect “upon the potential market for or value of the copyrighted work.”
(Note: if someone can tell me where the Schuyler Sisters pic comes from so we can credit, we’d really appreciate it!)
Friday’s appeals court ruling is significant because it clears the legal
uncertainty that has been hanging over Google for a decade, and also
because it provides more guidance on what qualifies as fair use in a
“Photography is inherently occult, a medium contacting the dead without contagion.” —Gus Blaisdell (via Mitch Cullen)
This recalls our repository of ghostly images that were never meant to be, entitledThe Ghost in the [Scanning] Machine. The specters were conjured unwittingly, through a mechanical process of book scanning. Their portraits technically do not exist, except within this context. To explain: in old books, frontispieces were typically protected by a sheet of translucent tissue paper. So thorough is the Google Books scanning process that even this page of tissue paper is scanned. The figure in the plate beneath the tissue—"beyond the veil,” as it were—emerges as from a foggy otherworld. The frontispieces were never meant to be seen this way. Their wraithlike manifestations have been artificially “fixed” in time by the scanning process. In essence, timeless phantasms of dead writers have been captured and bound into a new age. And so we call this phenomenon “unforeseen art,” as it constitutes an aesthetic expression without original intent. Just as artists often credit their inspiration to a Muse, the accidental art herein is in the domain of real ghosts; every author here has departed to the Other Side. We call it “necromancy by proxy,” as the scanning machine serves as our “spirit medium” or shaman.
Pictured above, a page from our book featuring a portrait fromThe Confessions of a Beachcomber. Note that the fisherman’s ghostly spear pierces the veil to make contact with the material realm.
Several years ago, Google came up with an idea to scan in a whole bunch of books and make them searchable, for free, for the public. They did this without a licenses from the copyright owners of the books, but contended that their use was not infringement.
Naturally, it went to court.
And today we have an answer from the Second Circuit: Google Books is Fair Use because the books are, themselves, transformative works.
While the case itself doesn’t mention fanworks, most law in the US is made by comparing situations and “arguing by analogy”, so the Google Books ruling has huge implications for fandom and the fan community. The bulk of the court’s analysis is focused on the first part of the Fair Use test: the “Purpose and character of the use”, aka whether or not a work is “transformative.” Although the “transformative” nature of a work is only one factor in the fair use test, it is often considered to be the most important part of the test, and the ruling in this case is no exception.
In this case, the court found that Google’s use of the text was transformative, both in the sense that it digitized the text, but also that it indexed and made the text searchable, comparing the function of google books, which isn’t to provide whole copies of books to consumers for free, but to provide ways for consumers to search for information in more than just web postings, similar to the function of thumbnail searching for images. (A practice which has already been held to be fair use, Perfect 10, Inc. v. Amazon.com, Inc, 2007.)
Finding transformative use where there has not been significant altering of the original work itself, but rather a transformation in how the original work is used, is extremely significant for fandom.
Though there haven’t been any direct rulings on the legality of freely shared fanfiction, there is a lot of misinformation and scare tactics that make the rounds periodically, claiming that we’re all just a C&D letter from being wiped off the face of the internet. In this case, the court found that,
‘Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it ‘adds value to the original’ and allows for ‘the creation of new information, new aesthetics, new insights and understandings.’ Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.
That’s what fanfiction does - its authors create new aesthetics, new insights and new understandings, in narrative form. The parallels are inescapable.
Expanding the definition of “transformative” to allow for uses of the original text that not only allow for new interpretation but allow for new uses that take from the source material and may or may not significantly change that source is huge for fanfiction, both as a matter of law and as a matter of public perception. Many people who are still arguing that fanfiction is illegal are claiming that it isn’t transformative enough. Fanfic is never going to supplant the original work; instead, fic writers are adding value to the original source by exploring characters and universes in more depth than the original is able to. Any ruling that expands the definition of what is considered a “transformative” work helps us.
We were having our own doubts, of course. How could you not? The Google Books project seemed to be letting itself go. Things any librarian would notice: bad scans; faulty metadata; narrowing the scope of public domain; having machines do jobs that should be done (or at least overseen) by humans. They seemed to be restricting and worsening access to cultural content, not expanding and improving it. Maybe we were going in different directions?
An article in The Message states that Google is reducing its efforts at digitizing old books. That certainly is a loss for
genealogists, historians, and many others. In what appears to be an
unrelated move, the Internet Archive is INCREASING its efforts at digitizing old books, adding 1,000 books to the online collection EACH DAY. Perhaps there is hope for genealogists after all.
You can read more about the demise of Google Books and the rise of the Internet Archive here. The Internet Archive may be found at http://archive.org. Information about the Internet Archive book digitization efforts may be found at http://archive.org/scanning.
«As libraries become increasingly digitized through projects like Google Books, what gets lost? What do we lose—and what can we gain—in the transition from physical objects to digital forms? How does the dematerialization of books effect our understanding of them? Can digital books be made physical again?
Special Collection consists of a dozen hand-sewn books, each partial recreations of books found on Google Books. Each is reproduced at its original size, revealing multiple disruptions and errors, introduced during Google’s own scanning process: the scanner’s hand, holding down and obliterating the page; type and illustrations which have degraded and blurred to the point of illegibility; pages scanned while in the process of being turned; fold-out maps and charts that were scanned while closed. Some of these artifacts are beautiful and evocative. They are the found poetry of this new machine.
By reinvesting these digital books with physical form, Special Collection asks us to consider the contradictions and unintended consequences of technological advance. Approaching Google Books through its fissures offers a chance to peek behind the curtain of a mysterious, complicated endeavor, which is little understood and generally taken for granted as progress. By using Google’s scans and resources to create this work, I am both highlighting the potential of this new era of distribution and access, and questioning Google’s claims of ownership of all the world’s information.»
Candidate for top useless Google book: Joseph Furttenbach’s Meschanische Reissladen (Augsburg, 1644) about the use, storage, and care of drafting instruments, all of the illustrations of which are on folding plates that remain folded. Below you can just look at what you’re missing! (Yes there are some books you read primarily for the pictures.)
The librarians on Medium are giving Google a hard time this week. I’m really enjoying Jessamyn West’s article on Google’s flakiness when it comes to working with libraries– starting strong in the early aughts, then tapering off by 2009:
Some of you might remember that in like… 2006 and 2007, I discovered a collection of primary sources on 19th century French republicanism entitled “Les Révolutions du XIXe siècle” and embarked on a mad quest to hunt it down. It ended in me schlepping out an hour’s drive to the University of Maryland, plonking my nervous teenage self down in their library with the sense that I was trespassing, and proceeding to type up absolutely insane amounts of it by hand. This still makes up about ¾ of what’s on the History page of my website, even if it barely scratched the surface of what was in the collection.
I still sometimes get the urge to cry with joy over how much the digitization and online availability of public-domain documents has revolutionized the amateur study of history. I want to go back and give my 18-year-old self a hug and whisper beautiful things about the future in her ear, because the fact is that in summer 2006, I didn’t even give a second thought to sitting there in the UMD library with a pair of reading glasses I never should have needed, hunched over a copy of “La presse républicaine devant les tribunaux 1831-1834” and touch-typing as fast as my fingers could manage the French. It didn’t even occur to me to be sad that there was no other way to share these sources with anyone (or even have them myself for later reference, because I’m not a UMD student and can’t check out books there). At that point Google Books was barely a thing and they didn’t even have any partnerships to digitize university libraries yet. Digitization? Of obscure stuff like this, rather than the classic literature up on Project Gutenberg? What did I want, the world handed to me on a silver platter?
Well, whether I thought to want it or not, that’s what I got. And a pony. All wrapped up in a bright red bow.
Gallica’s records indicate that “Les Révolutions du XIXe siècle” was digitized in October 2007. That’s the same month I discovered Google Books. And I don’t think that’s a coincidence–it’s a sign of HOW FAST this all happened. Open-access public-domain history went from a pipe dream to a reality in the space of a year. The sources we take for granted now, the sources that have actually started showing up in Amazon results because there are companies that will take the free digitized copy and print it for you on demand, were things that were just not available when I got into Les Mis fandom unless you had either inter-library loan access or the time, gas money, geographic luck, and brazen gall to march into random institutional libraries and call yourself a historian. I hit the jackpot on geographic luck, but in 2006 I never did work up the time and courage to jump through all the security and registration hoops to request things from the closed stacks at NIH or the Library of Congress. And the Library of Congress? Is really goddamn friendly and open-access compared to the Bibliothèque Nationale de France, which makes you justify yourself with institutional backing and proof that you can’t obtain your sources anywhere else just to get into the building. Which is one more reason why Gallica is a beautiful, amazing thing.
“Tales of human frailty and obsession, and of romance gone tragically awry, the thirteen stories in The Doll
showcase an exciting budding talent before she went on to write one of
the most beloved novels of all time (Rebecca). In these pages, a waterlogged
notebook washes ashore revealing a dark story of jealousy and obsession,
a vicar coaches a young couple divided by class issues, and an older
man falls perilously in love with a much younger woman—with each tale
demonstrating du Maurier’s extraordinary storytelling gifts and her deep
understanding of human nature.” - Google Books