Author's Guild Didn't Want To 'Pull An RIAA' But Still Misses The Point

from the it's-a-bit-better dept

Mon, Feb 8th 2010 2:14pm — Mike Masnick

Last week, in discussing its attempt to settle its lawsuit with Google over the Google book scanning project, the Authors Guild posted a rather interesting public letter, entitled To RIAA or Not to RIAA, That was the Question. In defending the settlement, it notes that it could have fought the lawsuit to the end, but that it might have lost. In fact, this is why I supported the idea that Google should have fought on, because it seemed like Google had a strong fair use case -- something the Authors Guild admits. Even though the Authors Guild says that it disagrees that the book scanning project was fair use, an awful lot of copyright legal scholars seemed to believe that it was, in fact, fair use.

But the more interesting point is that the Authors Guild noted that even if it did win the lawsuit, that could actually make things worse, and it pointed to the RIAA's Pyrrhic victories over file sharing systems:

Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.

It didn't work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn't truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.

While I applaud the Authors Guild for recognizing that suing (and even winning) don't help you innovate and can backfire massively in driving innovation underground, it does still feel like the Authors Guild got the wrong message out of this. Despite what it claims above, the "innovation among copyright [infringers]" did not really "abate" with the introduction of the iPod/iTunes. While the Authors Guild is correct that offering a legal solution is better than offering nothing or fighting innovation, it feels like it's overestimating how much of the market transformation its facing is due to infringement vs. how much is due to economic forces that will occur even without infringement in the market.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: authors guild, book scanning, copyright, fair use
Companies: authors guild, google, riaa

29 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Dark Helmet (profile), 8 Feb 2010 @ 1:54pm

Translation
Look, we know we just shit the bed here, but we're dying, so it's acceptable....
[ link to this | view in chronology ]
NAMELESS.ONE, 8 Feb 2010 @ 2:59pm

HI LAZY artists
well why dont you ask for 50 year copyrights and capital punishment for anything infringing , heck why stop there
lets make using EVERY tool thats made by a person require a tax or license so that you TOO can be a copyright lazy person.

FactoryRIGHT will call it for factories and HAMMERTIME for hammers and tools.

YES YOU TOO CAN ENJOY that yacht building club

BE LAZY TODAY JOIN THE AMERICAN WAY
[ link to this | view in chronology ]
- sehlat (profile), 8 Feb 2010 @ 3:05pm
  
  Re: HI LAZY artists
  You updated this to 500 years. I wonder if anybody can locate Shakespeare's descendants? Hollywood owes them a bundle!
  [ link to this | view in chronology ]
NAMELESS.ONE, 8 Feb 2010 @ 3:00pm

edit note
ask for 5000 year copyrights....
[ link to this | view in chronology ]
sehlat (profile), 8 Feb 2010 @ 3:04pm

Why am I _not_ surprised?
One of the hardest things for anybody to do is admit "I screwed up." It's at least an order of magnitude harder when the screwup is 1. major, 2. corporate, and 3. very, very, public.

So the MPAA, the RIAA, and the Authors Guild/Publishers all go down the same path, trying the same doomed remedies, getting their butts kicked, and then, rather than admitting they've dropped important bodily parts into a wood chipper, they can turn around and scream "It's the pirates! You've got to stop them!" For too many people in such organizations, seeing themselves as "right" is placed at a higher priority than surviving.
[ link to this | view in chronology ]
NAMELESS.ONE, 8 Feb 2010 @ 3:10pm

yea and you too can use big words like a lawyer
yes lets make an entire industry based on something that dont really exist and get so called educated people to use BIG LONG words to obfuscate the idea and confuse the people into hey that guy must be smart he jsut used a 4 syllable word

YES LAWYERS thy rock we need a whole planet of them....mars anyone
[ link to this | view in chronology ]
The Anti-Mike (profile), 8 Feb 2010 @ 3:29pm

perhaps they just don't want to face the Masnick legal system:

http://techdirt.com/articles/20100204/0125048040.shtml

*shakes head*
[ link to this | view in chronology ]
- The Mighty Buzzard, 8 Feb 2010 @ 3:36pm
  
  Re:
  Nobody should, that's freaking scary. I damned sure wouldn't want jurors on my trial researching for facts on wikipedia or asking their friends on twitter.
  [ link to this | view in chronology ]
  - Anonymous Coward, 8 Feb 2010 @ 3:39pm
    
    Re: Re:
    They might find out about jury nullification!
    [ link to this | view in chronology ]
    - The Mighty Buzzard, 8 Feb 2010 @ 3:46pm
      
      Re: Re: Re:
      Exactly. And from wikipedia they could find out that jury nullification was outlawed back in 1963. Not true but give me a minute and it can be up on wikipedia.
      [ link to this | view in chronology ]
      - Anonymous Coward, 8 Feb 2010 @ 4:57pm
        
        Re: Re: Re: Re:
        Wikipedia is not the internet.
        [ link to this | view in chronology ]
        
        The Mighty Buzzard, 9 Feb 2010 @ 7:54am
        
        Re: Re: Re: Re: Re:
        That would have been what we like to call an "example". Supposed facts posted on the Internet are under no oathbound obligation to be true, unlike evidence presented in court. Sure it may not be 100% effective but I'd like at least some assurance that the information a jury is basing their decision on is true.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 9 Feb 2010 @ 9:38am
        
        Re: Re: Re: Re: Re: Re:
        Snopes.com is also an example.
        [ link to this | view in chronology ]
- Anonymous Coward, 8 Feb 2010 @ 3:38pm
  
  Re:
  So when the communications platform goes subdermal with encrypted bone induction harmonics then what? How do you stop everybody from privately communicating with the internet? Strip them of that freedom?
  
  This is a communications-free zone? There's that word again, free.
  
  What do we do? I got it!
  
  Let's add nothing to the discussion by throwing out personal attacks disguised as useless rebuttals!
  
  Oh TAMMY! You're so smart.
  [ link to this | view in chronology ]
  - The Mighty Buzzard, 8 Feb 2010 @ 3:44pm
    
    Re: Re:
    That wasn't a personal attack. That was an attack on Mike's stated position. Huge difference. Unless you happen to disagree with TAM, apparently.
    [ link to this | view in chronology ]
    - Hephaestus (profile), 8 Feb 2010 @ 4:54pm
      
      Re: Re: Re:
      Mike Actually did get us all talking about the subject of that article. Alot of good points were made ...
      
      TAM - "Court cases should be decided on the evidence presented."
      
      Ima Fish - "You've never went to law school so you do not have a clue about the litany of rules of evidence and the centuries of case law interpreting those rules. It is a prosecutor's burden to prove his or her case through the evidence presented, not through inadmissible heresy or via "story" published in a muckraking newspaper."
      
      etc - more of the same
      
      Okay thats only one good point ... Its the only one that matters.
      [ link to this | view in chronology ]
    - Anonymous Coward, 8 Feb 2010 @ 4:58pm
      
      Re: Re: Re:
      You're right! However, it's still a useless rebuttal.
      [ link to this | view in chronology ]
      - The Mighty Buzzard, 9 Feb 2010 @ 7:50am
        
        Re: Re: Re: Re:
        Yeah, the contents of TAM's post were pretty much 100% snark but they weren't a personal attack.
        [ link to this | view in chronology ]
- Anonymous Coward, 8 Feb 2010 @ 3:41pm
  
  Re:
  Sloppy troll is sloppy.
  [ link to this | view in chronology ]
- Anonymous Coward, 8 Feb 2010 @ 4:21pm
  
  Re:
  I think I'd prefer that legal system to the one you prefer, where due process doesn't exist and everyone is guilty until proven innocent.
  [ link to this | view in chronology ]
Hephaestus (profile), 8 Feb 2010 @ 5:07pm

The justice department of URS (UnitedRIAA States)
"February 5, 2010. As you may be reading in today's paper, the Justice Department in its filing regarding our settlement with Google continues to see legal problems with the settlement, focusing on class action law but also continuing to raise some antitrust concerns. We disagree with the Justice Department's reading of the law. "

The Justice departments of the URS rationale behind this is pretty obvious. What would happen if google went out and did the same thing to OOP (out of print) music and Video. I personally have a dozen bankers boxes of 78 records I bought at garage sales. As a guess I would say 70% of them are out of print and the only copies of them are old 78's. With no masters in existance if google book deal goes through this could open up ... GASP ... books, music, and video basically falling out of copyright.

Follow the money ....
[ link to this | view in chronology ]
Anonymous Coward, 8 Feb 2010 @ 5:20pm

Lazy Artists?
I'm not getting the lazy artist angle. Why shouldn't you hold copyright to a work that you created? I don't understand why people feel they should have the RIGHT to bootleg a person's work? Whether it's printed or recorded or whatever.
[ link to this | view in chronology ]
- Anonymous Coward, 8 Feb 2010 @ 5:25pm
  
  Re: Lazy Artists?
  Don't forget to send a check to whoever sold you your computer.
  [ link to this | view in chronology ]
- Dementia (profile), 8 Feb 2010 @ 6:06pm
  
  Re: Lazy Artists?
  Actually, there are very few here who believe copyright should go away completely. That said, the current period of copyright is so far beyond excessive that it's no where near funny. When people can't utilize things that have been around for 50 years or more, it begins to get ridiculous. Copyright was originally intended to provide a limited monopoly on the use of a creation. In today's world the "limited" part is getting to be out of control. Mickey Mouse should have been in the public domain decades ago, instead, it's still under copyright.
  [ link to this | view in chronology ]
  - Hephaestus (profile), 9 Feb 2010 @ 3:59pm
    
    Re: Re: Lazy Artists?
    "Mickey Mouse should have been in the public domain decades ago, instead, it's still under copyright."
    
    You forgot the Disney movie "Song of the south"
    [ link to this | view in chronology ]
- Danny, 9 Feb 2010 @ 9:59am
  
  Re: Lazy Artists?
  It's not a matter of having a right to bootleg its a matter of people using the copyright system as a welfare system that allows them to create a few hits and then live forever off of bascially preventing anyone else from using your creation.
  
  It would be one thing if I created a new comic book charater and had rights to it for a while. It would be quite something else for me to create a new comic book character and then my decendents 10 generations in the future are still holding and living off of the copyrights to it.
  [ link to this | view in chronology ]
  - Anonymous Coward, 9 Feb 2010 @ 11:11am
    
    Re: Re: Lazy Artists?
    Or you sold your work to a corporation who holds it for a really long time. How long? Well, just wait till the corporation is finished lobbying the political class then we'll see for how long.
    [ link to this | view in chronology ]
BentFranklin (profile), 8 Feb 2010 @ 7:34pm

Here's another reaction to RIAA's heavy hand:

http://www.riaaradar.com/
[ link to this | view in chronology ]
Lloyd Jassin, 8 Feb 2010 @ 8:05pm

Come Again? What Did the Guild Gift OP Works to Google?
In justifying the GBS, the Author's Guild said, "In our view, it's best for everyone that out-of-print library books be made available through reasonable, market-based means to readers, students and scholars." True. But why gift Google the exclusive rights to Orphan Works. The AG should have continued to lobby Congress on behalf meaningful Orphan Works legislation. Orphan Works had what to with the fair use? And, had the fair use issue been resolved in Google's favor, what harm to publishers if Google was reined in by the 4th fair use factor. Content is king, and the Guild (and AAP) gave Google a heap of content which it will monetize. Geez. Why wouldn't the the AG and AAP blue pencil the naughty Orphan Works bits?
[ link to this | view in chronology ]