fair use in Thylstrup 2019


ndeed, it
seemed that authors and publishers were part of a world entirely different
from Google Books: while publishers and authors were still living in and
defending a “regime of scarcity,” 23 Google Books, by contrast, was busy
building a “realm of plenitude and infinite replenishment.” As such, the clash
between the traditional infrastructures of the analog book and the new
infrastructures of Google Books was symptomatic of the underlying radical
reorganization of information from a state of trade and exchange to a state of
constant transmission and contagion.24

Foregrounding the fair use defense25, Google argued that the public benefits
of scanning outweighed the negative consequences for authors.26 Influential
legal scholars such as Lawrence Lessig, among others, supported this argument,
suggesting that inclusion in a search engine in a way that does not erode the
value of the book was of such societal importance that it should be deemed
legal.27 The copyright owners, however, insisted that the burden should be on
Google to request permission to scan each work.28

Google and copyright owners reached a proposed settlement on October 28, 2008.
The proposal would allow Google no


lding, arguing that
potential competitors could just step up, since nothing in the agreements
entered into by the libraries and Google “precludes any other company or
organization from pursuing their own similar effort.”35 Nevertheless Judge
Denny Chin denied the settlement in March 2011 with the following statement:
“The question presented is whether the ASA is fair, adequate, and reasonable.
I conclude that it is not.”36 Google left the proposed settlement behind, and
appealed the decision of their initial case with new amicus briefs focusing on
their argument that book scanning was fair use. They argued that they were not
demanding exclusivity on the information they scanned, that they didn’t
prohibit other actors from digitizing the works they were digitizing, and that
their main goal was to enrich the public sphere with more information, not to
build an information monopoly. In July 2013 Judge Denny Chin issued a new
opinion confirming that Google Books was indeed fair use.37 Chin’s opinion was
later consolidated in a major victory for Google in 2015 when Judge Pierre
Leval in the Second Circuit Court legalized Google Books with the words
“Google’s unauthorized digitizing of copyright-protected works, creation of a
search functionality, and display of snippets from those works are non-
infringing fair uses.“38 Leval’s decision marked a new direction, not only for
Google Books, but also for mass digitization in general, as it signaled a
shift in cultural expectations about what it means to experience and
disseminate cultural artifacts.

Once again, the story of Google Books took a new turn. What was first
presented as a gift to cultural memory institutions and the public, and later
as theft from and threat to these same entities, on closer inspection revealed
itself as a much more complex circulatory system of expectations, promises,
risks, and blame. Google Books thus instigated a dynamic a


ent/authors-
guild-v-google/Authors%20Guild%20v%20Google%2009202005.pdf>. 21. As the
Authors Guild notes, “The problem is that before Google created Book Search,
it digitized and made many digital copies of millions of copyrighted books,
which the company never paid for. It never even bought a single book. That, in
itself, was an act of theft. If you did it with a single book, you’d be
infringing.” Authors Guild v. Google: Questions and Answers,
. 22.
Peters 2015, 21. 23. Hayles 2005. 24. Purdon 2016, 4. 25. Fair use constitutes
an exception to the exclusive right of the copyright holder under the United
States Copyright Act; if the use of a copyright work is a “fair use,” no
permission is required. For a court to determine if a use of a copyright work
is fair use, four factors must be considered: (1) the purpose and character of
the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes; (2) the nature of the copyrighted work; (3)
the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work. 26. “Do you really want … the
whole world not to have access to human knowledge as contained in books,
because you really want opt out rather than opt in?” as quoted in Levy 2011,
360.


trict of New York, March 22, 2011,
[http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115](http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115).
37. “Google does, of course, benefit commercially in the sense that users are
drawn to the Google websites by the ability to search Google Books. While this
is a consideration to be acknowledged in weighing all the factors, even
assuming Google’s principal motivation is profit, the fact is that Google
Books serves several important educational purposes. Accordingly, I conclude
that the first factor strongly favors a finding of fair use.” _The Authors
Guild et al. vs. Google Inc_., 05 Civ. 8136-DC, United States Southern
District of New York, November 14, 2013,
[http://www.nysd.uscourts.gov/cases/show.php?db=special&id=355](http://www.nysd.uscourts.gov/cases/show.php?db=special&id=355).
38.  _Authors Guild v. Google, Inc_., 13–4829-cv, December 16, 2015,
81c0-23db25f3b301/1/doc/13-4829_opn.pdf>. In the aftermath of Pierre Leval’s
decision the Authors Guild has yet again filed yet another petition for the
Supreme Court to reverse the appeals court dec


ve, open-ended listing[s]” that “display a
certain undecidability because inevitably a stratagem does not describe or
prescribe an action that is certain in its outcome.”39 Significantly, then,
failures and errors not only represent negative occurrences in stratagematic
approaches but also appeal to willful dissidents as potentially beneficial
tools. Dušan Barok’s response to a question about the legal challenges against
Monoskop evidences this stratagematic approach, as he replies that shadow
libraries such as Monoskop operate in the “gray zone,” which to him is also
the zone of fair use.40 Barok thus highlights the ways in which Monoskop
engages with established media infrastructures, not only on the level of
discursive conventions but also through their formal logics, technical
protocols, and social proprieties.

Thus, whereas Google lights up gray zones through spectacle and legal power
plays, and Europeana shuns gray zones in favor of the law, Monoskop literally
embraces its shadowy existence in the gray zones of the law. By working in the
shadows, Monoskop and likeminded operations highlight the ways in which the
objects they circulate (including the digital artifacts, th


Chicago: The University of Chicago Press.
256. Samuel, Henry. 2009. “Nicolas Sarkozy Fights Google over Classic Books.” _The Telegraph_ , December 14. .
257. Samuelson, Pamela. 2010. “Google Book Search and the Future of Books in Cyberspace.” _Minnesota Law Review_ 94 (5): 1308–1374.
258. Samuelson, Pamela. 2011. “Why the Google Book Settlement Failed—and What Comes Next?” _Communications of the ACM_ 54 (11): 29–31.
259. Samuelson, Pamela. 2014. “Mass Digitization as Fair Use.” _Communications of the ACM_ 57 (3): 20–22.
260. Samyn, Jeanette. 2012. “Anti-Anti-Parasitism.” _The New Inquiry_ , September 18.
261. Sanderhoff, Merethe. 2014. _Sharing Is Caring: Åbenhed Og Deling I Kulturarvssektoren_. Copenhagen: Statens Museum for Kunst.
262. Sassen, Saskia. 2008. _Territory, Authority, Rights: From Medieval to Global Assemblages_. Princeton, NJ: Princeton University Press.
263. Schmidt, Henrike. 2009. “‘Holy Cow’ and ‘Eternal Flame’: Russian Online Libraries.” _Kultura_ 1, 4–8.  

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