by Gary Wunder
When I was growing up, one thing that irritated me about being blind was that I could not pick up the newspaper delivered to my father or the magazine that came for my mother and just read them. I loved reading Braille, but it was in short supply, and what I got through my fingers was far from current news or celebrity news that provided for good conversation.
Even today, with all of the technology we have to make more books accessible, what is readily readable by blind people is about 7 percent of the material available to the sighted. We now have a better chance of getting a best-seller before history decides it is a classic or a trashy fad, but ninety-three of every one-hundred books are impossible for us to read without some significant effort on our part, such as hiring a human reader; scanning the book; or asking that some agency transcribe, scan, or record it.
In 2004, Google, the company best-known for its search engine, declared its intention to digitize every book in the world. This mammoth undertaking required taking a picture of each page, storing the image, and then extracting and storing the text. Only if the text has been extracted from the picture of each page can the material be searched electronically for words and phrases.
Google began by building partnerships with publishers and libraries, predominantly university libraries. What Google offered was to digitize every book in the library’s collection, provide the libraries with a digital copy, keep another copy on Google's own computer equipment, and return the original print volume.
So how did this lofty goal of digitizing every book in the world benefit the various stakeholders? The advantage to Google was that people could use its search tools to locate material heretofore available only on paper and therefore not searchable electronically. Although the Google project did not envision providing a link to the material searched, it could give the location of the book, the library where it could be found, and the pages on which the search terms were found. Google's search engine would be enhanced by having searchable material no one else in the industry could match.
The libraries had much to gain by partnering with Google. The dream of digitizing books has been widely shared, but the physical task of doing so ensured it would remain only a dream for some time to come. The University of Michigan, with a longtime commitment to digitizing books for its blind students, estimated it would take well over a thousand years to scan all the books in its collection with the current technology and staff available. What Google offered was the resources to see this project completed, not in ten centuries, but in less than ten years.
Other advantages accrue to the libraries. While we usually think of what is written as timeless, books are printed on paper, and paper degrades, ink fades, and important works disintegrate. Controlling temperature and humidity helps to slow this process, but the acidity of paper means that even in the most suitable environment, age will destroy the best-kept papers and books.
If a work is rare, a library may have only one copy. If it is handled and used, there is always some risk it will be damaged—a torn page or pages that come lose from their binding. As reprehensible as it is, competition to get into and do well in medical school and other competitive fields has sometimes meant the willful destruction of required reading. Digitization does away with the problem of having only one fragile copy, and the ability to store several digital copies at different sites further protects against the loss of a work due to a natural or man-made disaster.
Libraries also realize that having lots of information is of little value if it is hidden away where people can't find it. What pearls of wisdom were offered by Benjamin Franklin? If something he said has been captured by a popular biographer in a best-selling book, many know about it, but what about the quotation that made its way into a scholarly book long since published but never embraced by a large segment of the reading public? Digitization allows for searches, and these can identify the location of long-hidden treasures.
When Google made its offer, several interested libraries partnered to create a repository for the digital treasures they would soon inherit. They created the HathiTrust, an organization charged with collecting material, working out procedures for its secure storage, and devising policies for the way the digital books would be used. A good deal of the material digitized is covered under the copyright laws of the United States and other countries. Protecting the rights of publishers and authors and the reputation of the institutions making contributions to the HathiTrust is of the utmost importance. In Michigan procedures to comply with the spirit and letter of the copyright laws were so strenuous that, when someone borrowed a digital copy of a book, the physical copy would be removed from the shelf until the electronic copy was returned. This ensured that, when only one copy of a work had been purchased by the library, only one copy was being used.
In response to the creation of the HathiTrust, the Author's Guild, Inc., similar associations in other countries, and a dozen authors filed suit in the Southern District of New York. Defendants included the HathiTrust; Mary Sue Coleman, president of the University of Michigan (UM); Mark G. Yudof, president of the University of California; Kevin Reilly, president of the University of Wisconsin System; Michael McRobbie, president of Indiana University; and Cornell University. The case was assigned to Judge Harold Baer Jr.
The claim of the Authors Guild and other plaintiffs was that digitization by Google was unlawful because it created at least two additional copies of each book held by the libraries and that digitization posed a substantial risk to authors because their intellectual property would be shared in ways that would prevent them from being compensated. The cooperating university libraries and the HathiTrust countered by saying that materials were stored securely, that institutions and even individuals have the right to make a copy of materials they own, as long as the copy is not used commercially, and that, in making the copies, Google did not intend to share the digitized texts but only to search them and point interested people to the location of the books they might need.
So how do blind people emerge as interested parties in this struggle? When a book is digitized with text extracted, it is readable using devices that convert information into Braille, large print, or audio. The work done by Google and the HathiTrust in creating the Hathi Digital Library (HDL) would make millions of books available and would create a unique opportunity for the blind. Typically, a blind person had to request a book and then someone had to find the resources to transcribe it, usually with significant delay; the mass digitization project (MDP) by Google would mean that these books would be available when we wanted them and not at some time in the future after we had requested their transcription. This would bring us one step closer to the immediate access sighted people enjoy when using a university library. The operative word in the last several sentences is “would,” for, if the Authors Guild and the other plaintiffs had their way, the digital copies made by Google would be impounded and perhaps destroyed.
It is possible for interested persons or organizations to ask the court for permission to intervene by filing a friend of the court brief as a way of getting the court to take notice of information the organization considers important. In the action between the Authors Guild and the HathiTrust, the National Federation of the Blind did not ask to submit a brief as a friend of the court but to become involved as a defendant. This is rather bold and unusual because filing as a friend of the court does not make one liable, but being a defendant certainly does. If the Authors Guild prevailed, they might be awarded attorney's fees, for which all of the defendants would be liable. On the other hand, the NFB’s intervening as a defendant meant the court was required to decide the arguments made on behalf of the blind and print-disabled, and submitting the Federation to this risk indicated to the court the importance we attached to this matter and strengthened our ability to ensure that our arguments would be heard and could be forcefully advanced.
An argument that proved central in this case was that blind people and those who are print-disabled have a right under the fair use provisions of the Copyright Act to have access to print information that is digitized. Moreover, the court held that under the Chafee Amendment, the universities can choose to make their digitized copies available to all blind Americans, not just the students and faculty at that institution. Federationists will remember that in 1996 an amendment was made to the Copyright Act, allowing authorized entities to make copies of copyrighted material in formats the blind and print-disabled could use. The Chafee Amendment, as it was known when we fought for its adoption, was revolutionary because if someone wanted to reproduce and distribute a book in an accessible format exclusively for the blind and not take the risk that a court might not call that fair use, the entity would first seek permission from the copyright holder before printed material was converted into an accessible format. Sometimes, though, the copyright holder could no longer be identified. The Chafee Amendment freed up entities like the National Library Service and Bookshare to provide accessible copies without fear of being sued. When a case is filed, much of the preliminary paperwork focuses on whether the court has the right to make decisions about the issues under discussion. If it decides it has jurisdiction, it then must decide whether the parties bringing the case have standing. If someone steals a dollar from me, I have standing to sue that person to reclaim my property, and he has standing to make arguments asserting he didn't steal it. If a friend sees a dollar being taken from me, the court considers her an uninterested party in as much as she cannot bring suit to recover my dollar. I may call her as a witness, but she cannot initiate activity the court will consider. In lay terms, she has no dog in the fight.
Once the court concludes it can decide a case and the parties that will be involved, the participants file briefs with the court outlining their arguments. Responses from each side to what the other has written are advanced. Before a trial is scheduled, one or both sides may make a motion for summary judgment. In this request the court is told that the case made by one side is so persuasive that the outcome of the trial is a virtual certainty. The argument is also made that the evidence offered by the other side is so wanting that the court will reach the same decision. The motion for summary judgment suggests that the court may as well save its time and the time of the plaintiffs and defendants by making a ruling on what has already been submitted.
The language used isn't anything like what you see here. Instead, both sides outline their arguments, relying heavily on previously decided cases. The plaintiffs, the persons or organizations bringing the suit, argue that a case similar to theirs was decided in the affirmative and assert that the cases cited by the defendants are different from the defendant's interpretation of them. The defendants make the same claims about the arguments advanced by the plaintiffs. After a review of the motions and arguments submitted, a judge may set the case for trial or may award summary judgment.
In the case of the Authors Guild vs. the HathiTrust, the judge ruled, among other things, that the Americans with Disabilities Act and the United States Copyright Act certainly permit the digitization of books for the use of the blind and print-disabled. The arguments supporting the requirements of the ADA relating to access to information will be straightforward to most readers. Arguments supporting the mass digitization project under the laws governing copyright protections may be less clear. At the heart of the copyright argument is the concept of “fair use” and whether the books digitized represent a “transformative use” of the works. Making digital copies to share with those able to read the printed volumes would not be transformative because the copies would serve the same purpose as the original volume. Making a copy available to the blind and otherwise print-disabled is transformative in that the material as created was not intended to serve this population. Similarly, the intent of the hardcopy books was not to make possible an electronic search or to allow data mining, an interesting concept that explores the use of words and the way phrases and concepts evolve over time. An example of data mining cited in the judge’s opinion would be searching texts in order to compare the use of the verbs “is” and “are” when used to refer to the United States—one nation or a group of states which, for specific purposes, are united.
Returning our focus to concerns of the blind, the judgment further stipulates that university libraries are authorized entities which can convert and distribute digitized information in accordance with the provisions of the Copyright Act. Although many if not all universities have realized they have an obligation to convert print to something that can be used by the blind, many were uncomfortable assuming that the library might undertake digitization beyond the specific and identifiable needs of blind students matriculating there.
In his ruling Judge Baer singled out George Kerscher, Dan Goldstein, and Marc Maurer for convincingly describing the essential role of information in the lives of the blind and their struggle to get meaningful access to printed materials. Short excerpts from his opinion, edited to remove citations and other material relevant only to the court, follow:
In an eloquent oral argument by Mr. Goldstein as well as in Mr. Kerscher's declaration, Defendant Intervenors spelled out where blind scholars stood before digitalization: Prior to the development of accessible digital books, the blind could access print materials only if the materials were converted to Braille or if they were read by a human reader, either live or recorded . . . Absent a program like the MDP [Mass Digitization Project], print-disabled students accessed course materials through a university's disability student services office, but most universities are able to provide only reading that was actually required. Print-disabled individuals read digital books independently through screen-access software that allows text to be conveyed audibly or tactilely to print-disabled readers, which permits them to access text more quickly, reread passages, annotate, and navigate, just as a sighted reader does with text. Since the digital texts in the HDL became available, print-disabled students have had full access to the materials through a secure system intended solely for students with certified disabilities. Many of these works have tables of contents, which allow print-disabled students to navigate to relevant sections with a screen reader just as a sighted person would use the table of contents to flip to a relevant portion. In other words, academic participation by print-disabled students has been revolutionized by the HDL.
This is what the judge came to understand as a result of this case and a part of what he recorded for the legal practitioners who will further clarify how technology, with its ability to copy and transform material, will shape copyright law. The part played by the National Federation of the Blind is unquestionably significant, given how much of the judge's decision relies on fair use, the transformative nature of the digitized material, and its value to the print-disabled. The University of Michigan's leadership in asserting the rights of the print-disabled is impressive, and the work of Jack Bernard, their counsel, is courageous and significant. George Kerscher's longtime leadership in creating electronic books readable by the blind is a testament to his exceptional work to address the deficiencies he found in the books available to him in the pursuit of his graduate degree, and his service in the cause of making the printed word accessible is nothing less than stellar. All of the libraries, universities, and those who lead them deserve credit for their commitment through participation in this project to meet the spirit and the letter of the Americans with Disabilities Act.
This judgment has been appealed, but the arguments articulated in our filings and in the judge's decision will serve us well. We know that the distance traveled on the road to equality is seldom traversed in one step. We have been a part of a marathon that began in 1940 and will continue until blindness becomes as insignificant as the color of one's hair or the length of one's stride.
Through this case the National Federation of the Blind has made it clear that, not only do we insist on the same book at the same price and at the same time it is available to others, but we also insist that the libraries of the world be open to us, that our access to information be timely, and that one day soon we live in a world in which we no longer have to ask for a book and wait for its transcription but can decide to read it and then check it out just like anyone else.
We know that poor design can sometimes result in technology that limits our independence: household appliances that are unusable unless one can see a visual display provide just one example. But we also know that, when designed creatively and with the needs of the blind in mind, technology can transform the way we interact with the world. On both fronts, expanding access when information is not accessible and preserving access when someone tries to take it away, the National Federation of the Blind continues to be the strongest force pressing for equality of opportunity and the recognition that we are and shall be treated like the first-class citizens we are. We should demand nothing less from our society, and it should demand nothing less from us. This is the contract we share, the blind and those who help us, and this is the way we will make the future we dream of become reality.