Going Public: The March Toward a National Digital Library

By Sarah Kellogg

A national digital library is tantalizingly close for scholars, researchers, and the average American today. Millions of volumes of books, periodicals, and documents have been digitized and can be easily searched online, from literary classics to esoteric legal tomes to Revolutionary War pamphlets.

Thanks to the ubiquitous and moneyed Google Inc., a significant portion of the knowledge acquired by the world’s top research universities has been digitized and indexed, some 15 million volumes of public domain and in–copyright books and periodicals to date.

However, the majority of these volumes are not available to the public. This fact continues to trouble librarians, technology leaders, and public information advocates who believe that the United States should be a leader in creating a national digital library that serves the intellectual, cultural, and entertainment needs of all its citizens.

Yet creating such a library has proven to be extraordinarily complex. A combination of lawsuits, politics, and commerce makes the majority of these digital scans difficult, if not impossible, to access. In fact, the United States’ failure to resolve these concerns has cast doubt on when or even if there will be a digital library that serves all Americans and not just an exclusive club of university faculty, scholars, and researchers.

It’s not for lack of trying, though. Some half–dozen entities have established or are in the process of creating libraries, from Project Gutenberg (the first) to the Digital Public Library of America (DPLA) (the latest). Despite the hurdles, librarians remain hopeful.

“I think we will have a national digital library, or at least a version of it, by the end of 2013,” says Robert Darnton, director of the Harvard University Library and a DPLA steering committee member. “I’m hoping we will have the foundation laid, and we will begin building on that, and we will build on it forever. It will grow organically and indefinitely from this beginning. It will be the great library of the 21st century.”

Still, there are obstacles. There is a peculiar, chaotic quality to the surplus of groups digitizing library collections, most of them relying on Google’s scans to fill their virtual shelves but have unique visions of their customers and missions. Google remains locked in legal battles with authors and publishers over whether it can digitize and share full versions or snippets of books under copyright. And a debate rages over what to do with in–copyright, out–of–print books whose authors have disappeared or died.

 “Legally, I believe we are substantially further from a national digital library today than we were a year ago,” says James Grimmelmann, an associate professor at New York Law School and a national expert on the Internet and intellectual property. “The road could have been open to a library if the settlement between Google and the authors and publishers had been approved by the judge. But with it off the table, whatever happens in the courts is not going to result in a digital library because the compromise will be that much narrower.”

While there may be some doubts as to when a national digital library will open for business—how many there may be over the long term and whether it will ever be expanded to a global scale—there is no disagreement about the importance of creating a library to share collected knowledge widely and equitably. More importantly, others say, a national digital library’s long-term impact likely will go beyond access to cheap and easy downloads of books and periodicals; it may just determine the fate of the book itself.

 “A digital library could be seen as a way to stave off the death of the book,” says David Rothman, an Alexandria, Virginia–based author and blogger who writes frequently about digital libraries. “The book as a form is changing, but I hope that novels will always be around. By making them more discoverable and by thinking strategically about how to deliver them, we won’t lose them. It’s not just a matter of keeping the book alive in various [mediums]. It’s keeping it alive in people’s minds.”

A Little History
When the late Michael Hart launched Project Gutenberg in 1971, he published the first e-book (of the Declaration of Independence) and took the first steps to establish a national digital library. At the time, the expertise that would allow for the mass digitization of millions of books had not been invented, and the Internet was merely a new technology with great promise. Undeterred by the technological challenges, Hart personally typed in the text of the first 100 books in the archive, including the complete works of William Shakespeare. Today, Project Gutenberg has some 36,000 downloadable e–books available for free at its Web site.

From the beginning there were roadblocks to putting all the world’s books online and letting everyone with a computer, tablet, or mobile phone search for and access whatever book they desired for free. It was a variation of Hart’s original vision and one that has been embraced, to various degrees, by those who came after him. Forty years later, it is fair to say that creating a national digital library has proven to be a technically and legally challenging proposition.

Enter Google. When the California-based company announced the launch of the Google Print Library Project in December 2004, it was a gigantic step forward. Partnering with Harvard, the University of Michigan, the New York Public Library, Stanford University, and the University of Oxford, Google contracted to scan the library collections of these universities to create a comprehensive digital repository. Today, Google has digitized more than 15 million volumes, presenting the universities with digitized versions of books that once grew dusty in off–site storage.

“Google Books (formerly the Google Print Library Project) is a historic effort to make the knowledge contained within the world’s books searchable online. It exposes readers to information they might not otherwise see, and it provides authors and publishers with a new way to be found,” says Daphne Keller, an associate general counsel at Google.

Yet Google’s efforts swiftly revealed the challenges of trying to stretch 20th–century copyright laws to accommodate 21st–century digital libraries. One of the critical challenges has been in developing distinct, legal strategies to handle the three common categories of books: in–print and in–copyright, in–copyright but out–of–print, and out–of–copyright or public domain books.

The first category is the easiest to manage because library builders have stayed clear, for the most part, of in–print, in–copyright books, except where they have developed online distribution agreements with publishers and authors. These books are easily available for preview and purchase from online and bricks–and–mortar bookstores.

The boundaries are clear, as well, for books where the copyright has expired. Most of these are public domain books that were published prior to 1923. While some are available as special reprints, the majority of which are well–known classics from renowned authors such as Jane Austen or Herman Melville, most are generally out of print and not available. Project Gutenberg, Google, the Internet Archive, and other online libraries allow readers to download or print most of these titles for free.

“The first big project we did here was scanning some 10,000 books from between 1850 and 1876,” says John P. Wilkin, executive director of the HathiTrust, a digital library consortium, and an associate university librarian at Michigan. “They were very readable books, but they were in storage because they hadn’t circulated in 30 years or more. When they went online, they were used millions of times every month.

“This is one of the truisms for librarians. Things that can’t be found are not used. The things that are findable are used. We’ve changed the way people orient themselves to our cultural record by making these available online.”

Determining the fate of books that are in copyright but are out of print remains the thorniest legal issue today. These books are not being published, sold, or read. They litter the back shelves of libraries around the world, and a subset of them is even more invisible because their authors have been lost to history. While they still hold the copyright to their books, they may have died, disappeared, or no longer have active relationships with their publishers. How libraries address these so–called “orphan works” is one of the recurrent issues in nearly every lawsuit filed by authors and publishers.

“We know the big reason for the copyright law is to provide an incentive for creators to keep creating, but it really is overdoing it in terms of the length of copyright,” says Rothman, noting that copyrights stretching beyond authors’ deaths are especially frustrating. “You can’t create too much if you’re a corpse in a cemetery. Has F. Scott Fitzgerald put out many sequels to The Great Gatsby from Saint Mary’s Cemetery?”

Yet the zero–tolerance approach of authors and publishers reflects their unwillingness to be cut out of the fruits of their creative labors, alive or dead. They also happen to have the law on their side. For books published after 1923 but before 1978, with the appropriate renewals and notices, the copyright runs for 95 years. For those published in 1978 and later, the copyright generally extends for 70 years after the author’s death.

If authors and publishers are skittish, who can blame them? They are trying to avoid the fate of musicians and music producers who saw their works freely pirated by Napster and other illegal music–sharing Web sites in the 1990s and early 2000s. While piracy has diminished, many would argue that the music industry has never quite recovered from the assault.

“I know there is fear of the Napsterization of the book industry,” says Jonathan Band, a Washington, D.C., attorney who lectures extensively on digital libraries and copyright law. “But these are two very different situations. Here we’re not talking about anything that is in print and still commercially available. We’re talking about old stuff that is not available. It’s an accident of the law that copyright lasts for an absurdly long time. The DPLA, Google, or the HathiTrust aren’t looking to steal books as much as create an interest in these books, possibly for the first time in years.”

Google in the Courtroom
Like the scanning project itself, the class action lawsuit against Google to halt its digitization work has stretched on for years, an ever–present reminder that the critical issues around copyright, fair use, and commercialization are still unresolved despite the ongoing work by Google and other library builders.

Authors and publishers in other nations challenged Google’s digitization efforts between 2000 and 2004, but the Authors Guild waited to file its class action lawsuit until 2005. U.S. publishers followed suit several weeks later. At the time, Guild president Nick Taylor described Google’s actions as “a plain and brazen violation of copyright law.”

Google contended that its scanning but not releasing of volumes still under copyright protection did not violate federal copyright laws, especially since the corporate giant only released snippets of the books through its search tools. Google claimed that the snippets and scanning constituted “fair use” of the material.

“Google has changed the landscape,” Wilkin says. “Whether it’s $50 or $100 a volume for scanning, that’s a lot of money. That’s not money the libraries have had to spend. Google was willing to invest in the project, and we needed its assistance. We have 25 million volumes out there that we’re trying to bring online.”

When all the parties came together in 2006 to look for a compromise, there was a definite interest in finding a realistic solution. It was clear that devices such as the iPod, the digital reader, and eventually the tablet were going to revolutionize the business of publishing, and it was essential to craft an agreement that addressed and could adapt to the technological changes ahead. After nearly two–and–a–half years of negotiations, the Guild, the Association of American Publishers (AAP), a handful of individual publishers, and Google reached a settlement.

Announced in October 2008, the settlement would provide $45 million for authors and publishers whose in-copyright books had been scanned without permission. In the future, rights holders would receive payments through a newly created Book Rights Registry—an independent entity similar to the music industry’s American Society of Composers, Authors and Publishers or ASCAP—for sales of institutional subscriptions to the Google–digitized collection, online sales to consumers, printouts at public libraries, and many more uses. The Registry, funded by Google with a $34.5 million subsidy, would track usage of online books and would be guided by a board of authors and publishers. And authors finally would be permitted to pull their books from the library with reasonable notice.

The settlement quickly won friends and foes, and left U.S. Circuit Court Judge Denny Chin (then a U.S. District Court judge) with the challenge of sifting through all the various claims and complaints to determine whether the agreement, which ambitiously divvied up rights and royalties far into the future, met the legal sniff test.

One of the many problems with the settlement was that it granted Google broad licenses that traditionally would be granted through congressional action to a variety of entities and not a single company. The licenses were to scan books and to store them, to allow nondisplay uses to further development of search and translation tools, to allow nonprofit researchers to use them for academic purposes, to give libraries copies of the books scanned from their library collections and allow certain uses, and to permit Google to commercialize all out–of–print books.

Critics, including the U.S. Department of Justice, said the settlement most notably created barriers for other companies, basically blocking them from securing these licenses and giving Google a clear monopoly over the release of orphan books, and an exclusive opportunity to commercialize them.

Marybeth Peters, the U.S. Register of Copyrights at the time, explained to Congress in 2009 that her office grew increasingly concerned about the settlement the more her staff reviewed it. “We realized that the settlement was not really a settlement at all, in as much as settlements resolve acts that have happened in the past and were at issue in the underlying infringement suits,” said Peters in testimony before the U.S. House Judiciary Committee.

“Instead, the so–called settlement would create mechanisms by which Google could continue to scan with impunity, well into the future, and to our great surprise, create yet additional commercial products without the prior consent of rights holders…. Allowing Google to continue to scan millions of books into the future, on a rolling schedule with no deadline, is tantamount to creating a private compulsory license through the judiciary.”

In March 2011, Judge Chin rejected the settlement, saying it was too favorable to Google. “The [settlement] would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case,” he wrote.

Judge Chin’s concerns were serious, but he was especially distressed over the provision that authors or publishers would be required to opt–out or specifically tell Google not to digitize their books, or else they automatically would be added to the library. He encouraged the parties to try again.

“It’s the only ruling really that the judge, I think, could have made,” Pamela Samuelson, a law professor at the University of California at Berkeley who has written widely on the subject, told The Chronicle of Higher Education last March. “The settlement was so complex, and it was so far–reaching. With the Department of Justice and the governments of France and Germany stridently opposed to the settlement, it seems to me that the judge really didn’t have all that much choice. So the ultimate ruling, that the settlement is not fair, reasonable, and adequate to the class, is one that I think was inevitable.”

Change Status
With more time to negotiate, the parties have continued to look for common ground. It remains unclear what the shape of a new agreement could be. Judge Chin suggested that an “opt–in” provision for authors and publishers would go a long way toward resolving his concerns. Others have said that more narrowly focusing the agreement might make it more palatable to critics who complained about its grand scale and Google’s domination of the field of digital books in the distant future.

At a September 15 status conference, the plaintiffs and Google announced their discussions were continuing, but had not yielded a new settlement proposal. They had agreed on a schedule for the pretrial proceedings that will likely put the trial off until the summer of 2012. The judge reluctantly approved the schedule but told the parties he would not look favorably on further delays.

“We informed the court that the Association of American Publishers, the five publisher plaintiffs, and Google have made good progress toward a settlement that would resolve the pending litigation regarding the Google Library Project,” Tom Allen, president and chief executive officer of the AAP, said at the conclusion of the September 15 conference in a written statement. “We are working to resolve the differences that remain between the parties and reach terms that are mutually agreeable.”

Google says it remains committed to its original goal and optimistic about revising the settlement. “As we said after the September 15 hearing, we’re encouraged by the progress we’ve made with publishers, and we believe we can reach an agreement that offers great benefits to users and rights holders alike,” says Keller, Google’s lawyer. “We will continue to explore options with the authors. However, we are also moving swiftly to resume the original litigation. As we have said all along, Google Books was built to be fully compliant with copyright laws.”

The authors’ fears aren’t unrealistic. There are legitimate concerns about digitizing books and making them widely available, and authors and publishers have provided a service in bringing them to the forefront, observers say. First among them is how to protect a digital copy from duplication. Once it is on the Web, it will be relatively simple for hackers to scan or upload it, and libraries could easily lose control of the material.

“I think they’re paranoid about security, probably for good reason,” says Band, the Washington attorney. “To the extent there’s a demand for one of the thousand orphan books, if I have a copy of that one book and I want to pirate it, I’ll pirate it. That would still be true if I went into the library and checked out a book and copied it, of course.”

A second concern revolves around Google and how much the company will profit from the work, sometimes at the expense of the author or publisher. While Google presents an altruistic face, its critics say, everyone knows that the company must monetize its investment either through selling access to the books or making advertising a part of scanned pages to recoup the millions of dollars it has spent. Google declines to publicize how much it has spent up to this point.

A third consideration is around privacy protections. Google will likely be asked in a settlement to track usage of the copyrighted books and to use that information to reimburse authors and publishers for that usage. Being a well–known data collector and aggregator, Google will likely take that information about downloads and searches to further define and categorize individuals and organizations.

With so much at stake and the lawsuit stalled in the courts, many groups were hoping that Congress would take up the challenge of resolving copyright and other issues. But there has been little interest in the matter thus far. In fact, lawmakers haven’t held a hearing on this topic since 2009. It seems unlikely now that Congress will resolve the differences or clarify the law. The election year and fiscal politics on Capitol Hill make it an unlikely agenda item in 2011 or 2012.

Google is undeterred. “While a legislative solution is ultimately necessary to open access to the millions of in–copyright, out–of–print books that exist, there are other complementary ways to make progress,” Keller says.

New Legal Wrinkle
Frustrated by the sluggish pace of the lawsuit, the HathiTrust consortium of university libraries pooled its resources and continued scanning volumes to create a muscular digital library within academia. By working collaboratively to digitize their collections and make them accessible to other consortium partners, their faculty, and students, the HathiTrust hopes to build a library of more than 25 million volumes. It currently has nearly 10 million digitized volumes across its more than 50 members.

Like Google, the HathiTrust, which is headquartered at the University of Michigan, has not released full versions of digitized books that are still covered by copyright and are out of print. The consortium releases only bibliographic information for those and orphan works. For the consortium’s members, the legal hurdles of complying with post–1923 copyright rules are especially prickly.

“The biggest challenge for any of these digital libraries is copyright,” says Paul Courant, University of Michigan’s librarian and dean of libraries. “Somewhat frustrating for many of us is that lots and lots of these works, although they are in copyright, really have no essential commercial value. We need to ask ourselves if we as a society can get ourselves together enough to make them available to citizens for reasonable terms.

“I’m a respecter of intellectual property, but only to a point,” Courant adds. “The constitutional authority for copyright in the United States says something like: In order to advance progress in science and the useful arts, inventors and authors should have exclusive rights for a limited period. Information is valuable only if it is shared. We have a social interest to share it. We have a social value to make sure authors and inventors are recognized.”

The HathiTrust’s ranks have swelled in the last few years as universities saw an avenue to create a digital library for academia. The organization’s efforts were proceeding as planned until mid–September when the Authors Guild, two international writers’ groups, and eight individual authors filed suit against the consortium for copyright violations.

The Authors Guild is seeking an injunction barring the libraries from digitizing copyrighted works and asking the court to hold in escrow all the unauthorized scans that had been completed “pending an appropriate act of Congress.” The lawsuit alleges that the consortium’s digital collection is built with Google’s millions of “unauthorized” scans of works that are in copyright, but where the authors or their heirs haven’t been identified. These orphan works should be protected until Congress approves legislation determining their fate. “These books, because of the universities’ and Google’s unlawful actions, are now at needless, intolerable digital risk,” said Authors Guild president Scott Turow in a written statement.

Any legitimate arguments the HathiTrust might have offered to challenge those assertions disappeared in a flutter of embarrassing blog posts in mid–September when the Authors Guild noted that author J. R. Salamanca’s 1958 novel The Lost Country was on the list of orphan books to be released by the consortium in October. Long out of print, the book and 139 other orphan works were being released because their authors couldn’t be found. Yet the Authors Guild, in a series of brief Web searches and telephone calls, found Salamanca, a professor emeritus at the University of Maryland, within minutes of starting the process, utterly undermining the HathiTrust’s claims that it had completed extensive searches to find the original authors or copyright holders for all the orphan books scheduled for release.

A mortified University of Michigan responded immediately, suspending indefinitely the release of books under the HathiTrust’s Orphan Book Project and declaring its willingness to go back to the drawing board. “Having learned from our mistakes—we are, after all, an educational institution—we have already begun an examination of our procedures to identify the gaps that allowed volumes that are evidently not orphan works to be added to the list,” wrote the university in a statement. “Once we create a more robust, transparent, and fully documented process, we will proceed with the work, because we remain as certain as ever that our proposed uses of orphan works are lawful and important to the future of scholarship and the libraries that support it.”

A Hope for the Future
As much as the various lawsuits have delayed the launch of a national digital library, the legal impediments have given the nation’s libraries one critical advantage: a deeper understanding of the character and future of digital publishing. Seven years into the digitizing process, publishers and librarians are more keenly in tune with the latest technology to create and access books, and they have a new appreciation of how the public interacts with e–books and digital publications. “The shape of what digital is going to be is a lot clearer today than it was seven years ago,” says Grimmelmann, the New York Law School professor.

The DPLA, the latest entry into the digital library chase, may be perfectly positioned to take advantage of this small but useful advantage. With a clearer vision of the future, the DPLA will have time to develop a process that is advantageous to libraries, readers, and authors and publishers. Meeting in October in Washington, the DPLA sought input from many critical players, including the general public, on how best to design the DPLA and determine what should be included in its collections. The DPLA’s leadership remains optimistic about its future regardless of the pending legal questions. (As of this writing, the meeting had not taken place.)

“This won’t just be a scholarly repository of our cultural heritage,” says Harvard’s Darnton. “We can create the greatest library that the world will ever see and make it available to every citizen.”

If the DPLA meets that lofty goal, it will be because librarians have learned some hard lessons in the last decade about copyright and designing digital libraries—lessons they’ve employed in opening up the process for early and frequent input from interested parties.

“The library will be able to offer a framework to authors and publishers, and they’ll be able to commit to certain things to protect their interests,” says Grimmelmann in assessing the DPLA. “To the extent they can put together a vision of what would be in the library, and get a lot of libraries to coalesce around a plan, that creates something to talk about, and it’s an advantage that the new library would not have if the lawsuit was its source for being.”

The DPLA has its own critics. Some believe there should be separate libraries to serve the general public and academia, and that it is unrealistic to try to serve both constituencies with a single library. And there are complaints that the DPLA doesn’t think broadly enough about the future of bricks–and–mortar libraries.

“One of the problems I have with what is the laudable effort of the DPLA is there isn’t enough interest in working with trade publishers [who publish current books],” says Rothman, the author and blogger. “They favor an open–access strategy, and they don’t want to be limited by royalties.”

Darnton says that many of these types of complaints will be ironed out over the next year with help from the public, interested parties, and librarians through a series of public meetings.

In addition to the copyright questions, Darnton says the DPLA has all the problems that any new library initiative would have. Where will the money come from to finance it in the start–up and maintenance phases? Who will determine what content is included in the library? What formal governance mechanism will be put in place to oversee the library? What is the best technological architecture on which to build the library?

“This is a multifaceted project with many moving parts,” Darnton says. “We have created a series of committees to deal with technical, governance, and finance questions as we go forward.”

Global Digital Movement
As the United States inches forward to a national digital library, work proceeds at a swift pace in Europe in creating both national libraries and a digital clearinghouse of European volumes. The European Union (EU) has provided extensive funding for Europeana, which is an EU online library that links to some 10 million digital volumes and objects, including books, newspapers, manuscripts, videos, photos, paintings, and maps. Europeana has become a source for 2,000 years of European history, art, and literature, and is fed by more than 1,000 separate archives throughout the EU.

Gallica, which is funded by the Bibliothèque nacionale de France (National Library of France), is one of those feeder institutions. With some 1.5 million digitized books and objects, Gallica is moving swiftly to grow its digital stacks. It scans about 5,000 new documents every month. While its interface is presented in English, Spanish, and Portuguese, the documents are almost exclusively French, dating back to the 12th century. Its volumes and objects are royalty–free, or their rights have been negotiated with rights holders. Gallica also links to copyrighted works with strict conditions on their use determined by their rights holders.

The common denominator more often than not is Google, which is working collaboratively with libraries in Asia, Europe, and Latin America. Google also partners with more than 40 libraries and 40,000 publishers—including the National Library of the Netherlands, the Italian Ministry of Cultural Heritage, and the Austrian National Library—to make their books discoverable through Google Books. Earlier this year, it announced its partnership with the British Library project to scan some 250,000 books published between 1700 and 1870.

Google also recently announced breakthrough agreements with publishers in France to make French works more widely discoverable online and to create new sources of revenue for publishers. The agreements, some of which ended legal disputes, included deals with publishers La Martiniere and Hachette Livre. Additionally, three publishers in France (Albin Michel, Flammarion, and Gallimard) dropped lawsuits against Google in the last year.

Meanwhile, the Digital Library of India is in the process of digitizing “all the significant literary, artistic, and scientific works of mankind” and making them available universally. The library offers readers a chance to search by topic, title, language, subject area, and library or archive. Its “significant works” include a who’s who of the world’s greatest authors as well as a few surprises, including a Wisconsin Cheesehead favorite from 1961, The Green Bay Packers: Pro Football’s Pioneer Team by Chuck Johnson.

Similarly, China has embarked on a bold project, launching a digital library network with the National Digital Library of China at its center. Widely dispersed digital libraries at the county level would provide digital services and connect to the national library network. At of the end of 2010, the digital library’s resources had reached 460 terabytes, and the public was able to access 76 percent of those records.

While many nations are focusing on strengthening their national libraries, others see value in going beyond political borders and establishing a world library or clearinghouse that serves a broader mission. When the United Nations Educational, Scientific and Cultural Organization (UNESCO) and 32 partner institutions launched the World Digital Library (WDL) in 2009, it was with the goal of developing a worldwide library that documents and makes available the life, history, and culture of nations around the globe.

Developed by the Library of Congress, with contributions from dozens of partner institutions in as many countries, the WDL provides access to digital items, including photographs, maps, journals, and books, in seven main languages—Arabic, Chinese, English, French, Portuguese, Russian, and Spanish. “The World Digital Library is a wonderful idea, and it’s a very important step in the right direction to aggregate metadata and bibliographies and other materials,” Darnton says. “Of course, it’s not a national digital library. It’s an attempt to try to coordinate libraries on an international scale, and I think that’s an important goal in itself.”

An Unknown Future
While U.S. copyright law is a tough master, there is a sense of inevitability about the need for alterations in the federal law, if only to adapt it to the vast changes in technology, public reading habits, and information management. In a world where books are frequently the third or fourth entertainment option, behind video games, Web surfing, and television, making books and periodicals easy to find and access seems imperative.      

That doesn’t mean authors’ and publishers’ rights should be flouted. In the United States, ownership of your own ideas and the very essence of creativity come together to form the fierce foundation of copyright laws. Yet many authors and publishers may be forced to make a Hobson’s choice between keeping their out–of–print works alive and receiving little or no royalties, or allowing them to wither behind locked doors until they are adequately reimbursed.

 “I believe the authors of these books would rather have readers than to make a few extra dollars by a few sales,” Darnton says. “I think it’s in the interest of those authors to cooperate in a plan that we call open access to their works. It should be possible to devise a plan that would give authors minimal royalties, a fair return, in exchange for having their works available to the public.”

If authors and publishers vanquish Google in court, there also is some fear that the millions of scans completed by the company and locked away in university databases could be in jeopardy. “If Google loses this case, then hopefully the remedy would not be to seek the destruction of these copies,” Band says. “Hopefully [the parties] would not be so shortsighted that destroying these copies is the only answer. They are an important record, and we need to protect them.”

Ever optimistic, librarians like Courant and Darnton believe that regardless of the lawsuit’s final conclusion, better natures will prevail, and they are especially confident that the United States will have some form of a national digital library that is accessible to everyone.

“We will have something, but how complete it will be is, I think, a very open question,” Courant says. “The answer will largely be political. I think that we will have a national digital library of government documents, reference works, works in the public domain, and of all sorts of things. I expect we’ll have something very useful to most Americans, but having it in a form that makes it easy to use and reliable isn’t trivial and will cost some money. That will be our next challenge.”

Sarah Kellogg is a Washington, D.C.–based freelance writer who last wrote about the U.S. Supreme Court’s decision in Wal–Mart v. Dukes.