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Legislation and Litigation: Vanderbilt News and Google

May 20th, 2009 Posted in Digital Books, Openness, Publishing, Rights Registries | digg it blank

In the Spring of 1971, a novel screening of recorded TV footage was held in the Senate Office Building at the request of the Republican National Committee. That congressional screening, and a few others that were conducted later, inaugurated a set of events that ultimately contributed to one of the most significant rewritings of copyright legislation in the last 50 years (the 1976 Act), and the development of important Section 108 exceptions for libraries and archives.

The screening of videotaped recordings from major TV broadcast news stations on the U.S. government supported Laos incursions by South Vietnam’s Army was compiled and produced by a then little-known initiative housed at Vanderbilt University in Tennessee called the Vanderbilt Television News Archive (VTNA).

VTNA’s story began in 1968, when its founder, Paul Simpson, began the systematic recording of the three major U.S. television networks through their local affiliates. Uninterrupted to the current day, VTNA continues to record, collect, index, and make available national news broadcasts, preserving them in a unique collection available via a lending program to anyone in the country, merely at the cost of duplication or recording onto DVDs.

Within a few years of its founding, VTNA would wind up enmeshed in a skein of litigation and legislation. Yet, VTNA’s valiant efforts to protect public access yields an accidental and instructive example for how positive legislative outcomes can emerge in a fight against attempts to leverage court rulings benefiting private parties, side-stepping Congressional engagement.

At the Internet Archive, we believe there is an opportunity for a similar and critical analogue to emerge out of the proposed class action settlement in the Authors Guild, et al v. Google case placed before the SDNY District Court concerning Google Book Search.

History Lessons

The utility of the VTNA’s recording of TV news — and in the eyes of conservative government representatives and the Nixon White House, capturing the alleged liberal biases of the New York media — was apparent even before the landmark 1971 screening. VTNA attracted several attempts to legislatively enshrine protections for its activities, ultimately inspiring two discrete bills that wound up incorporated into the later 1976 Copyright Act: a mandate for a national broadcast archive and an exemption from liability against infringement for libraries and archives recording broadcast content.

In an important new work on the history of home video, Inherent Vice: Bootleg Histories of Videotape and Copyright, Lucas Hilderbrand discusses the impact of new technology on interpretations of rights, piracy, and property. Hilderbrand includes an entire chapter on the history of VTNA’s stressful journey along the parallel tracks of litigation and legislation, observing that “Copyright became the means of both challenging and ultimately ensuring public access to television records.” (N.B.: I am working from pre-publication galleys generously provided by the author, and used here with his permission).

Contemplating VTNA’s founding in the late 1960s, Hilderbrand comments: “Thus nearly a decade before fair use (Section 107 of the copyright act) would provide the basis of the Supreme Court’s ruling that off-air recordings for private use must be permitted, off-air videotaping directly shaped legislation of the exemptions for libraries and archives. Although distinct from Section 107, Section 108 can be seen as the logical, institutional extension of fair use.”

In the 1960s and 1970s, CBS News, the most watched, revered, and influential news broadcast in the U.S., kept its own semi-public (restricted access) archive. CBS believed that VTNA was recording and collecting news broadcasts without permission or license. After several attempts to force VTNA to license its own recordings, CBS sued the archive for copyright infringement in 1973, alleging that the archive re-edited and leased its broadcasts to users, appropriating its content.

CBS maintained that a private solution was the best approach for broadcast news access; the situation did not require intrusive legislative action. As late as Congressional hearings in 1975 on the draft revisions to the copyright law, CBS vice president and general counsel Robert Evans testified, “Moreover, the problem addressed by these unusual provisions is not one that requires Congressional action because it is being resolved by private initiative.” Of course, as Hilderbrand notes, the private initiative that CBS advocated was the network’s, not the VTNA’s. Hilderbrand comments further:

Despite CBS’ efforts to establish television news collections through [its own] public archives, Vanderbilt maintained that its operations were essential to democratize user access to the tapes and to maintain the availability of the other networks’ news programs. Despite being a private university, Vanderbilt refused to cloister tapes in the ivory tower and adamantly supported the broadest feasible scenario for public access.

After a few modifications to the proposed copyright legislation before Congress, and a reconciliation in which the Senate accepted several House modifications (including in Sections 107 and 108), President Ford signed the U.S. Copyright Act of 1976 into law on October 19. In early December, CBS requested the dismissal of the lawsuit without prejudice, and the court officially dissolved the case on December 20, 1976.

Google Book Search

Today, in a case with some striking similarities, Google, the AAP, and the AG hope to rewrite copyright through a private, judicially approved agreement. As Marybeth Peters, the U.S. Registrar of Copyright, observed at the Columbia Law conference on the settlement, “The question is: When you have a private agreement, where there are private solutions, that are in the nature of legislative action … is this a good thing?” Ms. Peters also quoted Robert Clarida, then Chair, Committee on Copyright and Literary Property for the NYC Bar as stating, “The settlement in effect provides a privately legislated set of rules governing relations between an entire copyright industry and the world’s largest search engine”.

Orphan works legislation almost passed in the last session of Congress. It could pass in this session. As the Justice Department begins an inquiry into the settlement, we have an opportunity to consider anew the proper wisdom of a legislative cure for a problem that Google originally attempted to address in 2004: providing the greatest possible access to out of print books that are potentially in-copyright. Unfortunately, that initial effort has turned into a radically reshaped proposal: a court-approved monopoly for Google, and a bad deal for authors and publishers.

The complex issues of rights registries, access to orphan works, elaborating fair use in a digital age, and maintaining international compliance should be the province of public discussion. The goals of Vanderbilt’s archive — “the broadest feasible scenario for public access” — must be the primary consideration that drives a public and legislative solution, instead of a privately negotiated settlement for the benefit on a single corporation currently under investigation for antitrust.

At the Columbia conference, Google’s chief counsel for the Book Search project, Alex Macgillivray, loudly noted Google’s staunch support for orphan works legislation. Well, now is the time. Let’s halt the push for a court approved, private settlement that gives Google a monopoly on the largest digital library of books in the world. Instead, let’s launch a considered investigation of what the nation deserves, in a dialogue that is open and inclusive of all the sectors of our country that have a stake in defining the 21st Century of books, and the rights of readers.

One Response to “Legislation and Litigation: Vanderbilt News and Google”

  1. Daniel Brandt Says:

    Yes, there needs to be legislation on the scope of fair use with respect to orphan works, as an antidote to the proposed Google monopoly. We would all love to get some clarity about whether Section 107 “fair use” applies to Google’s copying. Even more intriguing is whether the Section 108 “library exception” means that the University of Michigan can assist Google in copying its entire library, even though that University was perfectly aware in 2004 that Google planned to splash ads, and link to booksellers, on its snippets of Michigan’s copyrighted books.

    But your last sentence falls short when you refer to “our country.” The debate on Google Books is extremely U.S.-centric. The U.S. has copyright treaty agreements with 160 countries. Google’s market share for Internet search is substantially higher in some European countries than the reported 60 to 70 percent share it enjoys in the U.S., and Google is copying copyrighted books in many languages. Most countries don’t even have any “fair use” in their laws.

    A grass-roots effort, called the “Heidelberg Appeal,” began in Germany and captured the attention of German politicians. Britain and France joined with Germany, and managed to urge the European Union to investigate the Google book settlement.

    Not only are some of Google’s participating universities to blame for their poor performance on the Google Library Project since 2004 (for example, even public universities went along with Google’s nondisclosure demands), but I also blame the four-year silence of the American Library Association. The fact that Google got this far with its Library Project is a reflection on American libraries in general. And the fact that the ALA still does not oppose the proposed settlement is a reflection on them in particular.

    The international public interest is at issue here, not merely the American public interest.