Senator Tillis Angry At The Internet Archive For Helping People Read During A Pandemic; Archive Explains Why That's Wrong

from the that's-not-how-any-of-this-works dept

A few weeks ago, we wrote about the misguided freakout by (mainly) publishers and some authors over the Internet Archive's decision to launch the National Emergency Library during the COVID-19 pandemic, to help all of us who are stuck at home be able to digitally access books that remain in locked libraries around the country. A key point I made in that post: most (not all, but most) of the criticisms applied to the NEL project could equally apply to regular libraries. And perhaps that's why hundreds of libraries have come out in support of the project, even as those attacking the project insist that it's not an attack on libraries.

Either way, it was only a matter of time before publishers got their lapdogs in Congress to start making noise, and first out of the gate was Senator Thom Tillis, who is already deep into his attempt to make copyright law worse, and who last week sent a letter to the Internet Archive's Brewster Kahle that reads very much like it was written by book publishers. First it gets high and mighty about how the pandemic has "shown the critical value of copyrighted works to the public interest" which is just a weird way to phrase things. The fact that something valuable is covered by copyright does not automatically mean that copyright is helpful or valuable for that situation. Then it gets to the point:

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.

A few days later, Kahle responded in a detailed and thorough letter to Tillis. It points out that the Internet Archive is well-established and recognized by the state of California as a library, and that it has already shown that it has a legal right to digitize books. And then goes on to explain that the point of the NEL is to help enable Tillis' own constituents to access to the books that their tax dollars paid for while they're locked up collecting dust inside libraries that are closed during the pandemic.

The National Emergency Library was developed to address a temporary and significant need in our communities — for the first time in our nation’s history, the entire physical library system is offline and unavailable. Your constituents have paid for millions of books they currently cannot access. According to National Public Library survey data from 2018-2019, North Carolina’s public libraries house more than fifteen million print book volumes in three-hundred twenty-three branches across the State. Because those branches are now closed and their books are unavailable, the massive public investment paid for by tax-paying citizens is unavailable to the very people who funded it. This also goes for public school libraries and academic libraries at community colleges, public colleges and universities as well. The National Emergency Library was envisioned to meet this challenge of providing digital access to print materials, helping teachers, students and communities gain access to books while their schools and libraries are closed.

It also highlights something else that many had missed: the NEL does not include any books published within the last five years -- which is pretty important, since the commercial value of a book usually exists in the first couple years after publishing. Indeed, a recent study highlighted how the vast, vast, vast majority of sales tends to come soon after a book is published and then sales decline rapidly. So the argument that the NEL is somehow taking away from author income is already somewhat questionable.

And, indeed, the Archive is currently seeing evidence that suggests the NEL is not actually impacting author earnings in any significant way:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

The Internet Archive has also been highlighting case studies of teachers and students helped out by the NEL.

Kahle also explains to Tillis how he's wrong to say that copyright law does not allow this kind of lending. It's called fair use.

You raise the question of how this comports with copyright law. Fortunately, we do not need an “emergency copyright act” because the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances. As a result, libraries can and are meeting the needs of their patrons during this crisis in a variety of ways. The Authors Guild, the leading critic of the National Emergency Library, has been incorrect in their assessment of the scope and flexibility of the fair use doctrine in the past and this is another instance where we respectfully disagree.

The reference regarding the Authors Guild being wrong about fair use refers to its years-long fight to stop libraries from digitizing books, which resulted in a massive loss for the Guild's ridiculous interpretation of copyright and fair use.

In the end there are a bunch of important points here: even if Tillis is right that copyright is somehow proving its value in a pandemic (and he's not), that doesn't change the simple fact that this library is enabling people who cannot check out physical books from their locked community libraries to at least be able to access those books while remaining safe at home. The Internet Archive has legal scans of these books, and hundreds of libraries are supporting this effort. While it's true, as some authors and publishers highlight, that there are official ebooks for some books, many (especially older) books do not have them at all -- and those include lots of books that are commonly read in classrooms. And, as we pointed out last time, in cases where there are official ebooks, almost anyone would prefer to get those copies, because they are much easier to read and designed to be read on a reading device (specialized reading device, tablet, or phone) as compared to the NEL scans, which are straight scans of the book pages.

No matter what, it's a really bad look for Tillis to stomp around complaining that his constituents might actually be able to read books that are currently locked up in libraries. Remember that the entire intent of copyright law in the first place, and the subtitle of the US's very first copyright law, was that it be to enable learning. The Internet Archive is trying to help push forward that clear goal of copyright law... while Senator Tillis seems to want to stop it.

In the end, there's very little "there" there to the complaints about this project. It's difficult to see how it's harming author revenue in any real way, but it is clearly helping schools and students while the libraries and books they normally use are unavailable. And, there are strong arguments for why this is perfectly legal under copyright law -- and if the claim is that we should wait until that's absolutely proven in court, well, that kinda misses the whole point of helping out during a pandemic.

As professor Brian Frye recently wrote about all of this: "When you find yourself complaining about libraries, you might want to think twice about your priorities." And I'd say that counts double in the midst of a pandemic.

Filed Under: brewster kahle, copyright, covid-19, fair use, libraries, national emergency library, pandemic, thom tillis
Companies: authors guild, internet archive

Publishers And Authors Misguided Freakout Over Internet Archive's Decision To Enable More Digital Book Checkouts During A Pandemic

from the get-over-it dept

It's been said many times over that if libraries did not currently exist, there's no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. Last week, the Internet Archive announced what it's calling a National Emergency Library -- a very useful and sensible offering, as we'll explain below. However, publishers and their various organizations freaked out (leading some authors to freak out as well). The freak out is not intellectually honest or consistent, but we'll get there.

As you may or may not know, for a while now, the Internet Archive and many other libraries have been using a system called Controlled Digital Lending, which was put together to enable digital checkouts of books for which there may not be any ebooks available. Basically, the Archive helped a bunch of libraries scan a ton of books, and the libraries lend them out just as if they were lending out regular books. They keep the physical copy on the shelf and will not lend out more copies of the digital book than the physical copies they hold -- basically doing exactly what a library does. There are strong arguments for why this is clearly legal. Scanning a book you own is legal. Lending out books is legal.

Of course, when CDL was first announced, publishers (mainly) and The Authors Guild (which, contrary to its name, tends to be a front group for publishers, rather than authors) completely lost their shit and whined about how this was piracy. Remember, the Authors Guild has already tried suing libraries for scanning books and failed miserably. Challenging this effort at lending scans of books would also likely fail.

One important thing to note: the scans of books that are part of the CDL effort are not great. They are images of actual book pages, and not anything like ebooks that are designed to be read nicely on a Kindle or whatnot. No one would choose a CDL book over a regular ebook if given the choice, because the experience is not nearly as good.

The big news with the National Emergency Library is basically the removal of waitlists for checking out these books. They still have DRM and you still only can access the books for two weeks, but unlike with CDL where there was a 1 to 1 ratio of which books the Internet Archive had a physical copy of and those which it would lend out, the NEL removed that limitation and made it so that more people could access those books at once. The reasoning here is sound: in the midst of this pandemic, most physical libraries are closed, so most people literally cannot get physical books. They are sitting there unlendable. To help deal with that, the Internet Archive removed the waitlists on the books it had scanned. As the Archive explained, it focused heavily on making sure books with no ebook-availability (and educational books) were available:

The Internet Archive has focused our collecting on books published between the 1920s and early 2000s, the vast majority of which don’t have a commercially available ebook. Our collection priorities have focused on the broad range of library books to support education and scholarship and have not focused on the latest best sellers that would be featured in a bookstore.

Further, there are approximately 650 million books in public libraries that are locked away and inaccessible during closures related to COVID-19. Many of these are print books that don’t have an ebook equivalent except for the version we’ve scanned. For those books, the only way for a patron to access them while their library is closed is through our scanned copy.

But, of course, almost immediately after this was announced the very same groups that already insisted that CDL was "piracy" jumped on this to scream from the heavens about "piracy" in making these books available to people stuck at home. The Authors Guild flipped out:

IA has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author. We are shocked that the Internet Archive would use the Covid-19 epidemic as an excuse to push copyright law further out to the edges, and in doing so, harm authors, many of whom are already struggling.

This is false. The Internet Archive has every right to those books -- all of which were purchased or donated. And the Authors Guild already failed in its lawsuit saying that the books couldn't be scanned, so it's just making stuff up now to get even angrier than it was before. There is no more "harm" to authors than there is during the days when libraries are open and people could (as per normal) borrow these books. Again, the real thing the Authors Guild hates here is libraries.

The Association of American Publishers (run by fired former Copyright Office boss Maria Pallante) also freaked out:

“It is the height of hypocrisy that the Internet Archive is choosing this moment – when lives, livelihoods and the economy are all in jeopardy – to make a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity that it supports.”

No, it's the height of hypocrisy for publishers to attack a basic thing that libraries have done for centuries: lending out books that they own for limited periods of time to support the spread of knowledge -- especially given how stingy publishers themselves have been in embracing ebooks and easier access to knowledge.

The National Writers Union also insisted that rather than doing this, we should be spending taxpayer funds on repurchasing all these books that have already been purchased? That's the best I can figure out from this argument.

The argument is that students need e-books while they are staying home. But that’s an argument for spending public funds to purchase or license those resources for public use — not putting the burden of providing educational materials for free on writers, illustrators, and photographers. Authors also need to eat and pay rent during this crisis.

Again, that argument makes no sense. Because that same argument applies to any library copy of a book.

For what it's worth, the Internet Archive lets any author who is freaked out about this digital library lending out their books to opt-out of the system. And while I'm sure some authors will argue that opting out shouldn't be on them, that's again silly. The system works the way libraries work. Should authors also have to agree before a library can lend their book?

This is all a bunch of nonsense. As we've highlighted a few times in recent weeks, the pandemic has really highlighted just how insane copyright has become and how unmoored it is from its original intent of helping to further the spread of knowledge. Instead, it's used as a giant paywall, to lock up that spread. I know that people have bought into the ever growing idea of permission culture, but take a step back and think about how totally messed up it is that people might possibly have access to the world's knowledge, while being stuck in their homes during a pandemic... and to have people start yelling "but you don't have permission to do that." From an outsider's perspective, not brought up in the myth of permission-culture, the whole concept would sound ridiculous.

Filed Under: books, controlled digital lending, copyright, culture, digital lending, ebooks, libraries, national emergency library, pandemic, scanning, sharing knowledge
Companies: association of american publishers, authors guild, internet archive

Authors Guild Attacks Libraries For Lending Digital Books

from the fair-use-means-something dept

It's been a few years since we last had to write about the Authors Guild -- a group that ostensibly represents authors' interests, but really acts more like a front group for publishers' interests (often in opposition to the actual interests of authors). As you may recall, the Authors Guild spent tons of the money authors gave it for dues on suing libraries. Specifically it sued and lost against Hathitrust (a collection of libraries which were scanning books to make a searchable index), and then had the same result with Google and its book scanning project. In both cases, the courts deemed such scanning and indexing as fair use -- a transformative use of the work.

Apparently, unable to comprehend that maybe it shouldn't attack libraries, the Authors Guild is at it again, threatening the Internet Archive and other libraries for daring to start a carefully designed program to lend out copies of some of their scanned works. The system, called Controlled Digital Lending was put together by a bunch of libraries and the Internet Archive to lay out a system that they believe is clearly covered by fair use, by which digital scans of certain books could be made available on loan like any other library book. The whole setup of the Controlled Digital Lending system is carefully laid out and designed to mimic traditional library lending.

One of the most fundamental and socially beneficial functions of libraries is providing broad access to information by lending books and other materials to their communities. To lend materials more effectively, libraries can apply CDL to their collections in order to fulfill their missions. CDL techniques like those described in this Statement are designed to mirror traditional library practices permitted by copyright law.

Properly implemented, CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

There's a joke that's made its way around copyright circles for years that if libraries didn't already exist, there's no way that copyright interests would allow them to exist today. Indeed, in the past we've seen various attacks on the institution of libraries from certain authors and publishers. And this latest attack is no different, other than cementing the fact that the Authors Guild really hates libraries:

The CDL fair use theory also relies entirely on a completely outdated and misconstrued conception of the contemporary book market, as explained in our recent blog on CDL—as though publishers were the only ones that had copyright interests that potentially could be harmed. Nowhere does the white paper mention the copyright interests of authors—who generally remain the copyright owners of their works, whether traditionally or independently published, and control most non-traditional book rights.

Authors lose potential income from every unauthorized loan made under the CDL theory. The digital reproductions and loans merely supplant the legitimate sale of ebooks, whether library editions that the library would otherwise license, or ebooks that the author or publisher would sell directly to consumers. And for those books not yet available in ebook format, CDL usurps that market before the author even has a chance.

Even if an author is not currently monetizing her book, it is still usually one of her most important assets. When authors’ works go out of print, or copyright termination rights become ripe, authors are entitled to recover any rights licensed to a publisher, and many do. The author may then repurpose the work, update it, or simply reissue it with a new publisher; and, as has become increasingly common today, authors can easily self-publish their older works to bring them back to life. Hundreds, if not thousands, of our members have done so. Stories of older books becoming popular again because of a historical event, or a new film or TV show, for instance, are not uncommon. Authors should be able to profit from that, not libraries or platforms like Open Library.

Got that? Lending books -- which the libraries have legally purchased -- means that "authors lose potential income from every unauthorized loan made under the CDL theory." Say what? Under the traditional library system, there is no authorization necessary. Libraries are free to lend out any books in their possession, which this system is designed to mimic exactly. The Authors Guild is flat out saying here that it believes any lending of library books is bad for authors which is crazy.

The Authors Guild (and the Society of Authors in the UK which has sent a similar letter) are threatening legal action over this. The Authors Guild suggests that the ReDigi rulings that said that a company can't "resell" used MP3s is the controlling case on this issue. And while I think the Redigi case was incorrectly decided on a number of factors, it is difficult to see how that is the same as the Controlled Digital Lending situation -- whereby we're talking about restricted, temporary lending from libraries, of works where the library not only retains the matching physical copy, but also makes sure that if a digital copy is loaned out, the corresponding hard copies cannot be similarly loaned out simultaneously.

If this is another legal fight by the Authors Guild against libraries, it seems highly likely to lose -- as was the case with the Hathitrust lawsuit, which cost the Authors Guild (really, its dues-paying members) big time. Though, it is amusing to see a publishing newsletter where I read about this (1) totally ignore the Hathitrust lawsuit, and (2) effectively pen a love letter to the Authors Guild including this sort of nonsense:

In the States, the Authors Guild has demonstrated more than once that it, too, has a formidable legal department in place, headed by the organization’s executive director Mary Rasenberger, a copyright attorney who has spent part of her career working with the US Copyright Office.

Publishing Perspectives readers will recall that the guild issued an effective and blistering response for Judge Hellerstein’s court at the Southern District of New York in the so-called “CockyGate” case. In that instance, an author had tried to trademark a common word to prevent others using it in titles. The guild was the leading body operating for authors in the incident and achieving a resounding outcome, effectively putting to rest anybody’s hope of capturing a word in common parlance as their own.

It can be anticipated that, should the guild’s legal office become engaged–and such language in its commentary as “We must stop this Controlled Digital Lending nonsense in its tracks” certainly makes it seem that the legal team is poised to move. It can be expected that Rasenberger will lead the effort.

I mean, sure: we wrote about the silly Cockygate story as well, but I fail to see what that has to do with questions regarding copyright, fair use and libraries. Instead, it seems that the Hathitrust case -- which directly involved all of those issues -- is more relevant. And yet, magically, that episode is completely absent from the "Publishing Perspectives" piece, which instead drones on and on about how amazing the Authors Guild and Authors Society are.

Perhaps this case will be different, but... so far it seems this effort may only be serving to upset authors. Take, for example, Aram Sinnreich, who has publicly told the Authors Guild to shove off in response to it pushing its member authors to sign a letter "against" Controlled Digital Lending:

But, really, in the grand scheme of things, if you want to know when you've gone off the rails entirely, "threatening to sue libraries for lending books they've legally obtained" is certainly a good indicator.

Filed Under: authors, controlled digital lending, copyright, fair use, knowledge, lending books, libraries
Companies: authors guild, internet archive

Copyright Maximalists Throw In The Towel On Term Extension; Admit That Maybe Copyright Is Too Long

from the about-fucking-time dept

Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they'd face this time would be significantly more difficult than when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they'd lose. Unlike last time, this time the public is paying attention and can mobilize on the internet.

Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante -- who has long pushed for copyright maximalism in many different areas -- suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge -- even an inch, and here was a tiny inch that they indicated they were willing to give up.

Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again:

The Author's Guild, for example, "does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works," a Guild spokeswoman told Ars in an email. "If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible."

The RIAA and MPAA were slightly more muted, basically saying they "are not aware" of any efforts or proposals and it's not something they're pushing:

"We are not aware of any such efforts, and it's not something we are pursuing," an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.

"While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue," the MPAA told us.

Of course, those statements are kind of funny, because they both know damn well that the only way such proposals would even be a topic for discussion is if they were pushing for them. That won't mean some nutty copyright holder won't push for an extension, but the RIAA and MPAA's recognition that they would lose (and lose spectacularly and embarrassingly) means that no such proposal is going to go anywhere.

Now, let's see what it will take to get them on board with the Authors Guild plan to start to move copyright terms in the other direction.

Filed Under: copyright, copyright term, copyright term extension, lobbying
Companies: authors guild, mpaa, riaa

Authors Guild Petulantly Whines About How Wrong It Is That The Public Will Benefit From Google Books

from the talk-about-sour-grapes dept

Yesterday we wrote about the fairly unsurprising, but still good, news that the Supreme Court had rejected an attempted appeal by the Authors Guild of the really excellent fair use decision by the 2nd Circuit appeals court over whether or not Google scanning books to build a giant, searchable index was fair use.

It's no surprise that the Authors Guild -- which has been tilting at this particular windmill for over a decade -- was upset about the refusal to hear the case, but I wasn't quite expecting the level of ridiculous sour grapes that were put on display:

“Blinded by the public benefit arguments, the Second Circuit’s ruling tells us that Google, not authors, deserves to profit from the digitization of their books,” said Mary Rasenberger, executive director of the Authors Guild.

Did you get that? The Authors Guild is so completely out of touch that it actually thinks that "public benefit arguments" have no place in copyright disputes, despite the very fact that the Constitutional underpinnings of copyright law is to maximize the public's benefit. And, of course, this all ignores the fact that the vast, vast majority of authors greatly benefit from such a searchable index in that it drives more sales of books.

But, on with the hyperbole:

“Today authors suffered a colossal loss,” said Authors Guild president Roxana Robinson. “We filed the class action lawsuit against Google in September 2005 because, as we stated then, ‘Google’s taking was a plain and brazen violation of copyright law.’ We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes.”

What you believe, and what the law says, are different. And that was the case back in 2005 when you filed the suit just like many of us said at the time.

“The price of this short-term public benefit may well be the future vitality of American culture,” continued Rasenberger. “Authors are already among the most poorly paid workers in America; if tomorrow’s authors cannot make a living from their work, only the independently wealthy or the subsidized will be able to pursue a career in writing, and America’s intellectual and artistic soul will be impoverished.”

This is ridiculous on so many levels. First, most authors cannot make a living today because most books don't sell. That's not the fault of Google Books. In fact, as noted time and time again, Google Books acts as a discovery mechanism for many books and increases sales (I've bought dozens of books thanks to finding them via Google Book Search). Second, the gloom and doom predictions of legacy industries over new technologies is time-worn and has never been even remotely correct.

What Rasenberger leaves out of her ignorant whine is the fact that in the time that Google Books has existed, the number of authors has increased massively. No, they're not all making a living, but the purpose of copyright law is to incentivize the creation of new works for the public, and the public is getting an astounding amount of new works -- a totally unprecedented amount of new works actually -- and it's got nothing to do with anything the Authors Guild has done.

And, of course, the Authors Guild still won't give up, promising to fight this issue in other courts, hoping to get a circuit split that the Supreme Court will review:

Following the Supreme Court’s order, the Guild vowed to remain vigilant to ensure that the Second Circuit’s ruling is not taken as carte blanche for unfettered digitization of books. “The Second Circuit decision took pains to highlight that fair use was found based on the strict display restrictions and security measures currently employed by Google,” said Authors Guild general counsel Jan Constantine. “We’ll continue to monitor Google and its library partners to ensure these standards are met, as we will take appropriate action to ensure that fair use isn’t abused.”

To ensure that fair use isn't abused? Lovely people at the Authors Guild who outright declare themselves against public benefit, and then worry about the "expansion" and "abuse" of fair use. Does no one at the Authors Guild recognize that their authors are protected by fair use as well and many of them rely on it all the time? Who would ever join such a backwards looking and thinking organization?

Filed Under: 2nd circuit, book scanning, copyright, fair use, google books, public benefit, supreme court
Companies: authors guild, google

Supreme Court Says It Won't Hear Authors Guild Appeal Over Google Books Ruling

from the nice-to-see dept

Last fall, the 2nd Circuit appeals court gave a clear and convincing win to Google in the long-running Authors Guild case against Google's book scanning program. And, really, the decision was a massive win for the public, in that it was a strong defense of fair use (even in commercial settings). But, of course, the still clueless Authors Guild -- which doesn't seem to actually represent the interests of most authors (many of whom have found Google Books to be a profoundly useful tool) -- decided to ask the Supreme Court to overturn the case.

That request has now been rejected. As is standard with the Supreme Court, no reason is given: If you can't read that, it just says that the petition for cert is denied and that Justice Kagan "took no part in the consideration." I'm not exactly sure why Kagan abstained -- I thought perhaps she had weighed in on earlier rounds of the case as Solicitor General, but can't find anything.

Either way, this is a very good thing. The excellent 2nd Circuit ruling stands. And while it technically only applies to cases in that circuit, it will most likely influence cases elsewhere. Also, the Supreme Court has a long, and unfortunate, history of coming up with nutty decisions in big copyright cases.

Filed Under: 2nd circuit, book scanning, copyright, elena kagan, fair use, supreme court
Companies: authors guild, google

And Of Course: Authors Guild Asks Supreme Court To Overturn Fair Use Ruling On Google Books

from the fighting-technology-every-step-of-the-way dept

Back in October, the 2nd Circuit appeals court issued a really wonderful fair use win on the long-running (and somewhat ridiculous) lawsuit that the Authors Guild had filed against Google Books. The decision -- written by Judge Pierre Leval, who has long been a key player on issues of fair use -- was decisive and clear. It capped a ridiculously long process, in which the Authors Guild lost at every stage, wasting the money of its members. The ruling was quite clear that Google Books was transformative and did not compete with the original works. It also highlighted how it benefited the public. A key part of the ruling:

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const., Art. I, 7sect; 8, cl. 8) (emphasis added). Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

We noted at the time that it was likely that the Authors Guild would ask the Supreme Court to rehear the case -- and according to the Washington Post, that is exactly what's happening. The filing claims that this is a massive and unprecedented expansion of fair use, and wants the Supreme Court to fix things:

This case represents an unprecedented judicial expansion of the fair-use doctrine that threatens copyright protection in the digital age. The decision below authorizing mass copying, distribution, and display of unaltered content conflicts with this Court’s decisions and the Copyright Act itself. This case also presents important issues on which the circuits are split, highlighting the need for this Court to act.

As we noted in our post about the original ruling, it's not clear that there's really a circuit split here, no matter what the Authors Guild wants to claim. The Authors Guild tries to manufacture a circuit split by arguing that multiple other courts have said the "transformative use" test requires "new creative expression" but it seems to be making that up. Yes, that's one form of transformative use, but not the only one.

The Supreme Court rejects most petitions to hear cases, so it wouldn't surprise me if it turns this one down as well. That would be the best overall result. The 2nd Circuit ruling is clear and concise -- and given the Supreme Court's history on copyright issues, there's a half-decent chance that even if it came to the right overall decision, the justices would muck it up in some way in the process. Either way, if the Supreme Court does take the case, this will be a key one to follow.

Filed Under: 2nc circuit, book scanning, copyright, fair use, google books, pierre leval, supreme court
Companies: authors guild, google

Appeals Court Gives Google A Clear And Total Fair Use Win On Book Scanning

from the move-on-already dept

The Authors Guild's never-ending lawsuit against Google for its book scanning project has been hit with yet another blow. The 2nd Circuit appeals court has told the Authors Guild (once again) that Google's book scanning is transformative fair use. This is not a surprise. Though this case has gone through many twists and turns, a few years ago it was also before the 2nd Circuit on a separate issue (over the appropriateness of it being a class action lawsuit) and the 2nd Circuit panel ignored that question, saying that it shouldn't even matter because it seemed like this was fair use. Thus it was sent back to the district court, where Judge Danny Chin correctly said that the scanning was fair use. That ruling was appealed, and the AG trotted out some truly nutty legal theories (arguing that it wasn't fair use because someone like Aaron Swartz might hack into Google's computers and free the books).

These arguments did not work. The 2nd Circuit has affirmed the lower court ruling and given another nice appellate ruling establishing the importance of fair use -- and a reminder that, yes, commercial uses can still be fair use:

Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in dispute.

There are some really great statements in the ruling, which isn't a huge surprise, given that it was done by Judge Pierre Leval, who has written some of the most thoughtful things about fair use. For example, he clearly and directly notes that the purpose of copyright is to benefit the public:

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const., Art. I, § 8, cl. 8) (emphasis added). Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

This, of course, is the same argument that we've made here in the past many times (often mocked by copyright extremists). Notice that the section of the Constitutional copyright clause that Leval chose to highlight is the ever-important "to promote the progress" language. In a footnote, Leval similarly notes that UK copyright law actually comes with a similar preamble: "for the Encouragement of Learning."

From there, Leval has a short discussion on the history of fair use, and the key Supreme Court rulings on it, before jumping into the necessary four factors, which is carefully written and nuanced. It's worth reading in its entirety, but a few snippets. First, the court finds that the use of search here makes the Google books program transformative:

the purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it. In addition, through the ngrams tool, Google allows readers to learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods. We have no doubt that the purpose of this copying is the sort of transformative purpose described in Campbell as strongly favoring satisfaction of the first factor.

Then there's the question of whether Google's snippet view is fair use, and again, the court finds that it is:

Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use

But, you say, Google is a big for-profit business, and doing this to make money, so how can that be fair use? By this point, we've debunked the "commercial use can't be fair use" myth so many times on Techdirt it almost doesn't seem worth repeating, but since people always bring it up... here's what the court says:

While we recognize that in some circumstances, a commercial motivation on the part of the secondary user will weigh against her, especially, as the Supreme Court suggested, when a persuasive transformative purpose is lacking... we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.

On the second factor (the nature of the work) the court notes that it's somewhat unimportant here, but still leans towards fair use.

While each of the three Plaintiffs’ books in this case is factual, we do not consider that as a boost to Google’s claim of fair use. If one (or all) of the plaintiff works were fiction, we do not think that would change in any way our appraisal. Nothing in this case influences us one way or the other with respect to the second factor considered in isolation. To the extent that the “nature” of the original copyrighted work necessarily combines with the “purpose and character” of the secondary work to permit assessment of whether the secondary work uses the original in a “transformative” manner, as the term is used in Campbell, the second factor favors fair use not because Plaintiffs’ works are factual, but because the secondary use transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute for the original.

Factor three (the amount of the work) is obviously one that the Authors Guild leaned heavily on, but the court is not convinced that it weighs against Google here either, noting that because the use is transformative, copying the entire work is necessary. The argument here is that the real intent of factor three is to see if the defendant copied more than is necessary for the transformative use, and that's not true with Google books:

As with HathiTrust, not only is the copying of the totality of the original reasonably appropriate to Google’s transformative purpose, it is literally necessary to achieve that purpose. If Google copied less than the totality of the originals, its search function could not advise searchers reliably whether their searched term appears in a book (or how many times).

On the question of snippets, the court again finds for Google noting that it's only displaying a small portion of the work -- again, no more than necessary. The court notes that if snippets were done differently, it could impact the fair use analysis, but that Google does a good job of not revealing too much.

Without doubt, enabling searchers to see portions of the copied texts could have determinative effect on the fair use analysis. The larger the quantity of the copyrighted text the searcher can see and the more control the searcher can exercise over what part of the text she sees, the greater the likelihood that those revelations could serve her as an effective, free substitute for the purchase of the plaintiff’s book. We nonetheless conclude that, at least as presently structured by Google, the snippet view does not reveal matter that offers the marketplace a significantly competing substitute for the copyrighted work.

Google has constructed the snippet feature in a manner that substantially protects against its serving as an effectively competing substitute for Plaintiffs’ books. In the Background section of this opinion, we describe a variety of limitations Google imposes on the snippet function. These include the small size of the snippets (normally one eighth of a page), the blacklisting of one snippet per page and of one page in every ten, the fact that no more than three snippets are shown—and no more than one per page—for each term searched, and the fact that the same snippets are shown for a searched term no matter how many times, or from how many different computers, the term is searched. In addition, Google does not provide snippet view for types of books, such as dictionaries and cookbooks, for which viewing a small segment is likely to satisfy the searcher’s need. The result of these restrictions is, so far as the record demonstrates, that a searcher cannot succeed, even after long extended effort to multiply what can be revealed, in revealing through a snippet search what could usefully serve as a competing substitute for the original.

Finally, the all-important fourth factor (the impact on the market). Again, the court finds in favor of Google, noting how unlikely it is that Google's book project is a substitute for actually getting a book:

Especially in view of the fact that the normal purchase price of a book is relatively low in relation to the cost of manpower needed to secure an arbitrary assortment of randomly scattered snippets, we conclude that the snippet function does not give searchers access to effectively competing substitutes. Snippet view, at best and after a large commitment of manpower, produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book. This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.

Yes, the court notes, it's possible that it might lead to some lost sales, but that's not enough to find against fair use -- especially since in those cases, it probably means that the amount of information sought was not protectable by copyright in the first place:

the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright. A snippet’s capacity to satisfy a searcher’s need for access to a copyrighted book will at times be because the snippet conveys a historical fact that the searcher needs to ascertain. For example, a student writing a paper on Franklin D. Roosevelt might need to learn the year Roosevelt was stricken with polio. By entering “Roosevelt polio” in a Google Books search, the student would be taken to (among numerous sites) a snippet from page 31 of Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981), telling that the polio attack occurred in 1921. This would satisfy the searcher’s need for the book, eliminating any need to purchase it or acquire it from a library. But what the searcher derived from the snippet was a historical fact. Author Goldberg’s copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression.

I'd also argue that if we're talking about the theoretical rare cases where it leads to a lost sale, it should be noted that it's probably just as likely that Google Books leads to more sales as people find snippets of books that make them want to buy the full book (I've personally bought a few books because of snippets found through Google's book search.) But the court doesn't go there.

The court then takes on the question of whether or not Google has deprived the Authors Guild of a derivative right to create or license their own search and snippets features. The court dismisses this argument with ease, reminding the Authors Guild of the important fact that fair use is not infringement, and nothing in copyright includes a special right to limit the ability to search or create snippets:

There is no merit to this argument. As explained above, Google does not infringe Plaintiffs’ copyright in their works by making digital copies of them, where the copies are used to enable the public to get information about the works, such as whether, and how often they use specified words or terms (together with peripheral snippets of text, sufficient to show the context in which the word is used but too small to provide a meaningful substitute for the work’s copyrighted expression). The copyright resulting from the Plaintiffs’ authorship of their works does not include an exclusive right to furnish the kind of information about the works that Google’s programs provide to the public. For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.

Finally, the court laughs off the argument that an Aaron Swartz like hacker might free all of the files in Google's database:

While Plaintiffs’ claim is theoretically sound, it is not supported by the evidence....

Google has documented that Google Books’ digital scans are stored on computers walled off from public Internet access and protected by the same impressive security measures used by Google to guard its own confidential information. As Google notes, Plaintiffs’ own security expert praised these security systems, remarking that “Google is fortunate to have ample resources and top-notch technical talents” that enable it to protect its data. JA 1558, 1570. Nor have Plaintiffs identified any thefts from Google Books (or from the Google Library Project). Plaintiffs seek to rebut this record by quoting from Google’s July 2012 SEC filing, in which the company made legally required disclosure of its potential market risks.26 Google’s prudent acknowledgment that “security breaches could expose [it] to a risk of loss . . . due to the actions of outside parties, employee error, malfeasance, or otherwise,” however, falls far short of rebutting Google’s demonstration of the effective measures it takes to guard against piratical hacking. Google has made a sufficient showing of protection of its digitized copies of Plaintiffs’ works to carry its burden on this aspect of its claim of fair use and thus to shift to Plaintiffs the burden of rebutting Google’s showing. Plaintiffs’ effort to do so falls far short.

Similarly, the court is unimpressed by the Authors Guild's claim that even if Google's own security is good, the fact that it shares scans with libraries who donate books to be scanned, opens up a new line of attack.

Although Plaintiffs describe the arrangement between Google and the libraries in more nefarious terms, those arrangements are essentially that each participant library has contracted with Google that Google will create for it a digital copy of each book the library submits to Google, so as to permit the library to use its digital copy in a non-infringing fair use manner. The libraries propose to use their digital copies to enable the very kinds of searches that we here hold to be fair uses in connection with Google’s offer of such searches to the Internet public, and which we held in HathiTrust to be fair uses when offered by HathiTrust to its users. The contract between Google and each of the participating libraries commits the library to use its digital copy only in a manner consistent with the copyright law, and to take precautions to prevent dissemination of their digital copies to the public at large.

In these circumstances, Google’s creation for each library of a digital copy of that library’s already owned book in order to permit that library to make fair use through provision of digital searches is not an infringement. If the library had created its own digital copy to enable its provision of fair use digital searches, the making of the digital copy would not have been infringement. Nor does it become an infringement because, instead of making its own digital copy, the library contracted with Google that Google would use its expertise and resources to make the digital conversion for the library’s benefit.

As the court points out, sure it's possible that a library might use such files in an infringing matter, but if that happens, then the copyright holders can go after that library. They can't go after Google for the theoretical possibility that someone else might infringe a copyright at some future date.

And, in case you were wondering, there was no dissent at all. This was a unanimous decision by all three judges on the panel, giving yet another complete victory to Google saying that its book scanning project is fair use -- and, as an appeals court ruling, is useful in creating precedent in the all important 2nd Circuit (with some pretty damn good quotes for future cases). This is a big and clear win for fair use. It's likely that the Authors Guild will try to appeal to the Supreme Court, but without a clear circuit split, it's unclear if the Supreme Court would bother to take up the case.

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

Authors Guilded, United, And Representing... Not Authors

from the what's-their-real-agenda dept

One of the more Orwellian aspects of the book world is the number of publisher advocate groups calling themselves Author This and Author That. The Authors Guild, Authors United, the Association of Authors' Representatives... their devotion to protecting the interests of authors is right there in the names, right? No further inquiry necessary.

That's the idea behind the misleading nomenclature, anyway. But even a cursory glance at the behavior of all these "author" organizations reveals their true priorities and actual allegiances.

Let's start with the Authors Guild, which claims to "have served as the collective voice of American authors," and which describes its mission as "to support working writers. We advocate for the rights of writers by supporting free speech, fair contracts, and copyright. We create community and we fight for a living wage." The Authors Guild even proudly notes that it "has initiated lawsuits in defense of authors' rights, where necessary."

Leave aside the wooly talk about creating community. How does the collective voice of American authors, the supporter of working writers, the advocate for the rights of writers, go about fighting for that living wage? Especially given that publishers are making more money from digital books than ever, and sharing less of that money with authors than ever.

Well, the organization has periodically mentioned in passing that the shockingly low lockstep 17.5% legacy publisher digital royalty rate "needs to change," so there's that. Sometimes a spokesperson expresses his or her "hopes" for a little more fairness. And recently they did manage a whole blog post on the topic. But that's all. Occasional words; zero deeds. And likewise regarding a host of other obvious, longstanding, outrageous legacy publisher abuses such as life-of-copyright (forever) terms, twice-yearly payment provisions, draconian non-compete clauses, and impossible out-of-print clauses. Pro forma words and practiced complicity.

But does all this mean the Authors Guild is lying when it says it sometimes initiates lawsuits?

Not at all. The organization did sue Google and Hathitrust over digitization (the first suit was settled; in the second, the Authors Guild lost). Leave aside the merits of those suits; I think they were wrongheaded, but that's not the point. The point is that when the Authors Guild really wants to throw down, it throws down — just never against legacy publishers and the Rich Relationships™ by which they systematically screw authors (in fact, in the Google suit, the Authors Guild fought alongside the Association of American Publishers).

Indeed, at the moment when the Authors Guild had maximum leverage over legacy publishers to extract some actual digital royalty and contract provision concessions — during Hachette's contract standoff with Amazon — the organization surrendered that leverage and threw all its Collective Voice of American Authors weight behind Hachette. Even though Hachette's position was costing authors money; even though Amazon had repeatedly offered to compensate any authors who were being harmed by the standoff.

What's doubly bizarre about the Authors Guild's reflexive anti-Amazon animus is that Amazon stands for so much of what the Authors Guild claims to want. A pristine example: as I write this, the organization bleats on its home page that "Half of Net Proceeds is the Fair Royalty Rate for E-Books," while two lines down it calls on the government to investigate Amazon…for paying exactly that fair royalty!

Not only does the Authors Guild refuse to stand up to publishers; it actively supports them (while censoring the authors it claims to represent). I challenge you to review the organization's public positions and find a way to distinguish them from what you would expect in a legacy publisher press release. I'm being literal here — legacy publishers and the Authors Guild actually do cite and cross-post each other's press releases. Here's an example — the Authors Guild, approvingly posting on its own site a press release from John Sargent, CEO of Macmillan, who in the release approvingly quotes Scott Turow, then president of the Authors Guild. It's really that incestuous between the New York Big Five and the Collective Voice of American Authors.

If the Authors Guild really wanted to "advocate for fair contracts," it would support self-publishing, which even more than Amazon publishing is empowering authors with the first real competition the industry has ever seen — a 70% digital royalty rate (four times the lockstep legacy standard); control over packaging and other business decisions; faster time to market. Yet there's nothing on the Authors Guild website about how to use KDP, Kobo, NookPress, Smashwords, or any other self-publishing resource. Nothing about AuthorEarnings.com, the most comprehensive breakdown available about where authors are making money in Amazon-, legacy- and self-publishing. The only "self-publishing" resource available through the Collective Voice of American Authors has been a notorious scam outfit called (naturally) Author Solutions (a relationship the Authors Guild finally terminated in May).

(Novelist David Gaughran has been tireless in exposing Author Solutions' shady practices — see the preceding links — and the refusal of establishment publishing media to follow up on his work is at least as revealing as anything else in this article about where true power lies in the industry. Within that refusal there's a great story for an intrepid journalist about concentrated media ownership, how advertising dollars buy silence, and why establishments are so reluctant to examine their own shadiest practices.)

Authors United is no different. Against abysmally low digital royalties, Authors United might offer up a bit of pro forma tut-tutting. But the organization's only real action — in the form of petitions, monster ads in the New York Times, media blitzes assisted by pet stenographers, letters to boards of directors, and letters to the Department of Justice pleading for protection for publishers — is against the company that has sold more books than any other, that has opened up publishing to more authors than ever before, that pays higher royalties than any legacy publisher, that is making more money for more authors than ever before, that pays authors once a month instead of twice a year, that gives authors unprecedented access to sales data, that almost single-handedly ushered in the digital book revolution — Amazon.

All of which is more than a little weird just on the face of it. But it gets even weirder — and more telling — when you consider the animating principles Authors United claims in the anti-Amazon screed it recently sent to the Justice Department:

[We can't have a company using] its technologically supercharged monopoly powers to manipulate and supervise the sale of books and therefore affect the exchange of ideas in America…

The government has the responsibility to maintain an open, competitive, free, unsupervised, and undistorted market for books…

Our larger point is that we believe the Antitrust Division needs to reassess…overwhelming market power [regarding] any business that has established effective control of a medium of communication…

We believe these steps would restore freedom of choice, competition, vitality, diversity, and free expression in the American book market, while ensuring that the American people—as individual free citizens and as a democratic community—determine for themselves how to take advantage of the new technologies of the 21st Century…

Lofty principles! But given that Amazon's self-publishing platform enables all authors to publish whatever they like and leaves it to readers to decide what books they themselves find beneficial, while the New York Big Five (no concentrated market power in a group with a name like that!) has historically rejected probably 999 books for every one they deem worthy of reaching the public, a few questions present themselves. Such as:

• Who has really been manipulating and supervising the sale of books and therefore affecting the exchange of ideas in America, and who has really established effective control of a medium of communication — an entity that screens out 99.9% of books, or one that has enabled the publication of any book?
• Who has really been running an uncompetitive, controlled, supervised, distorted market for books — a company dedicated to lower prices, or a group calling itself the Big Five that has been found guilty of conspiracy and price fixing
• Who is really restoring freedom of choice, competition, vitality, diversity, and free expression in the American book market — an entity that consigns to oblivion 999 books out of a thousand, or one that enables the publication of all of them?
• And who is really ensuring that the American people determine for themselves how to take advantage of the new technologies of the 21st Century — an entity responsible for zero innovation and dedicated to preserving the position of paper, or one that has popularized a new publishing and reading platform that for the first time offers readers an actual choice of formats?

Measured against every one of the lofty principles Authors United claims to champion, the Big Five is a historical disaster; Amazon, a reformist boon. The organization decries Amazon's alleged abuse of its publisher suppliers (monopsony!), yet offers not even a word about how legacy publishers consistently abuse their own suppliers — the group commonly known as authors. Against legacy publisher abuses, silence; against the company that offers an alternative to those abuses, coordinated, well-funded attacks by a stable of celebrity authors (accompanied by admittedly hilarious claims to be "not taking sides").

Follow any of the links above to the various positions Authors United has taken, and repeat that handy "how do these positions differ from those of any legacy publisher?" exercise. You'll see almost complete redundancy between the positions of Authors United and those of, say, the Association of American Publishers. They might as well be the same organization. The only real difference is that one honestly declares that it represents the interests of publishers, while the other dishonestly pretends to represent the interests of authors.

Now let's look at the Association of Authors' Representatives, which, judging from what it has named itself, one might reasonably imagine is in the business of representing the interests of…authors.

So: when the Justice Department and 16 States Attorneys General charged the New York Big Five with colluding to fix prices, did the AAR cheer? No. Instead, they lobbied the Justice Department on behalf of the publishers. And when three of the Big Five settled with the Department of Justice, did the AAR, say, offer a public statement on behalf of the authors whose interests price-fixing had damaged? No. Instead, it protested the settlement “in the strongest possible terms” in a letter to the DOJ…on behalf of the publishers.

But when Penguin and Random House merged — inarguably increasing the already Olympian clout of the Big Five relative to authors, narrowing author alternatives, concentrating market power, diminishing choice, empowering a company notorious for scamming authors, etc., did the AAR write to the Justice Department to oppose the merger? Did the organization take any meaningful action at all?

Crickets.

And has this organization that purports to represent authors ever protested “in the strongest possible terms” any of the longstanding, widespread, abusive publisher practices noted above?

Against actual legacy publisher abuses, tepid words at best. In support of legacy publisher collusion, The Strongest Possible Terms.

All of which gives the lie to the oft-repeated Authors United claim that Amazon “retaliates” against authors. There’s no evidence at all for this charge; in fact, were it true, it’s hard to imagine how the books of every Authors United member, even those of floridly outspoken Authors United pitchman Doug Preston, would be available on Amazon, despite all the crazy accusations and anti-Amazon advocacy. These “author” organizations demonstrably have no fear at all of crossing Amazon. But the one group they never cross is the New York Big Five. Which is about all you need to know about where real retaliation, and real power, lies in the book industry.

Sometimes making a name misleadingly vague can serve an organization’s tactical interests — think the National Security Agency (it wouldn't do to call it the National Surveillance Agency) or the Chamber of Commerce (can't very well call itself the Big Business Lobbyist). Other times, organizations deliberately choose names that are the opposite of reality — calling a surveillance law the Freedom Act, for example, or a group dedicated to preventing gay marriage calling itself the National Organization for Marriage. It's the latter tradition in which all these allegedly author-centric groups belong. To call out their real priorities, their primary affiliations, in their names would be to reduce their effectiveness.

Now look, there’s nothing wrong with lobbying the government on behalf of big publishers. The First Amendment guarantees the right to petition the government for a redress of grievances, after all, and it doesn’t say those grievances can’t be self-serving or even that they have to be sane. I just wish all these organizations pretending to advocate for authors would call themselves something a little more honest. Power in publishing is already horrendously lopsided. Publisher lobbyists masquerading as author champions only makes things worse.

Filed Under: authors, books, groups, publishing, representatives, self-publishing
Companies: amazon, association of authors representatives, authors guild, authors united

Authors Guild Cements Reputation As Luddites: Hates The Internet And Especially Amazon

from the fighting-against-the-future dept

The Authors Guild has something of a reputation for being anti-innovation, anti-technology, anti-future and anti-consumer. It's also anti-small author. And it appears to be flexing its lobbying muscle this week to make all of this clear. It starts off with a move to ask for a dangerous idea in copyright reform, asking the House Judiciary Committee to implement a "notice and staydown" provision in any revamped copyright law. Just last year we warned people that "notice and staydown" was the way in which the legacy copyright industry extremists were looking to rebrand SOPA, and it has quickly become the preferred language of those looking to expand copyright and to attack innovation online.

The Authors Guild letter is ridiculous beyond belief. It starts off with the usual whining about poor, poor authors unable to make a living any more.

We are writing to ask you to make certain much-needed changes to the Copyright Act to help curtail Internet book piracy. Writers' income is in steep decline. There are many reasons for this, but a decrease in copyright protection and the aggregate effect of Internet piracy play an important role: the entire publishing industry loses $80 to $100 million to piracy annually, according to a 2012 estimate by the Association of American Publishers. Meanwhile, a recent Authors Guild survey shows that approximately 67% of our authors earn less than the poverty level from their writing, with median writing-related income at $8,000, down 24% since 2009, when e-book sales started to take off.

Books provide an essential contribution to our society. Most authors don't expect to get rich from what they do: they write to inform, educate, and entertain, and in doing so add to our common store of knowledge and culture. But to keep writing, they must be able to support themselves and their families. This has become increasingly difficult in the digital age.

Notice how, like the music and movie industry's before them, the Authors Guild immediately attacks online file sharing as if it must be the cause, ignoring all possible alternatives. In the book space this is particularly ridiculous, because the lowered barriers to entry from the internet means that many authors can now be published when that wasn't a possibility before. The number of ebook authors has exploded. Perhaps -- just perhaps -- rather than blaming "piracy" for the difficulty the elite club of the Authors Guild has, they might recognize the law of supply and demand, and recognize that the greater competition means that the monetary spend on the written word has been spread more widely. That's allowed lots of brand new authors to make a living from their writing, despite being passed over by the traditional publishers.

And, yes, many do not make a living, but that has always been the case. I know many people who have written books, and even those who have tried to "make a career" of it. And most don't. It's just not that easy to make a living as a book writer, and it's not because of piracy. As authors like Paulo Coehlo have found, file sharing can help authors build a larger audience and to make more money in the long run, if they learn how to embrace their fans, rather than actively push them away, like the Authors Guild often does.

Online book piracy, once the province of shady offshore websites, has migrated to mainstream American distribution platforms. Our "Notice and Takedown" system is completely inadequate to combat this problem. What we need instead is a "Notice and Stay-Down" regime: once a webhost knows a work is being infringed, it should not receive continued "safe harbor" immunity from claims of infringement unless it takes reasonable measures to remove all copies of the same work.

As we explained last year, this is one of those ideas that copyright holders love, because they don't understand copyright law in the slightest, or how any such system would inevitably work. The main problem is that copyright is context specific. Identical copies could be infringing or not infringing, depending on context. For example, remember when Viacom sued YouTube over video clips that Viacom itself had uploaded? A "notice-and-staydown" provision takes away the context and with it plenty of non-infringing works as well.

The Authors Guild also argues that it's somehow easy for companies to automate all this:

ISPs, on the other hand, do have the ability to monitor piracy. Technology that can identify and filter pirated material is now commonplace. It only makes sense, then, that ISPs should bear the burden of limiting piracy on their sites, especially when they are profiting from the piracy and have the technology to conduct automated searches and takedowns. Placing the burden of identifying pirated content on the individual author, who has no ability to have any real impact on piracy, as the current regime does, makes no sense at all. It is technology that has enabled the pirate marketplace to flourish, and it is technology alone that has the capacity to keep it in check.

This is just wrong on so many levels. First, if the Authors Guild is so worried about big companies, a policy like this makes them more entrenched. Even if we were to accept the Authors' Guild's faulty claim that these tools actually work (they don't), the argument that tech companies now have easy access to these tools is also not true. Big companies have access to these tools. But the next generation of startups do not. Thus, this policy would leave Amazon and Google in charge and block out any new company. Is that really what the Authors Guild wants?

Second, these systems don't work. We point out false takedowns on YouTube via ContentID all the time (and frankly we don't write about most of the ones that we see). Advocating a filter that will inevitably lead to greater censorship is a ridiculous position for the Authors Guild to be taking. And, by then putting legal liability on tech companies if they don't do this makes even worse, as it will only create more incentives for the tech companies to over censor to avoid any possible liability.

There's a reason why the burden does not belong on the intermediaries and it's pretty straightforward: the intermediaries don't know if it's infringing. That's something that only the copyright holders can legitimately determine. That's why the system requires notice from the copyright holders.

The purpose of copyright is to encourage the creation of new works--including and especially literary works, which contribute so greatly to our nation's store of knowledge and culture. To continue to work effectively, US copyright law must provide meaningful protection against the widespread online piracy of books and journals, so that authors can afford to write them.

Actually, the purpose of copyright is to "promote the progress" of learning and education, and it's supposed to do that in two parts: one by creating incentives for new works, but also to then benefit the public by increasing distribution of those works. And, we're already living in a golden age with more books being written and published today than ever before. To argue that ebook piracy has somehow taken away the incentive to write... well, the evidence just suggests that's wrong. And, again, most authors never make much money at all. To complain that authors don't make enough is a different issue altogether and has little to do with copyright.

Of course, the Authors Guild didn't stop there. Also this week it went on the offense against Amazon, asking the Justice Department to investigate Amazon for antitrust violations -- even though the DOJ already looked into Amazon's practices and found them to be fine (instead finding Apple had violated antitrust law in colluding with publishers to raise ebook prices). But, don't mind the details, the Authors Guild is sure Amazon is to blame. According to the Authors Guild, the fact that consumers benefit from lower book prices shouldn't let Amazon off the hook.

Without commenting on the outcome of the Apple case, or the facts that led the majority to its conclusion, we'd like to point out the long-term dangers of interpreting antitrust law solely to favor low book prices over a thriving competitive and robust literary marketplace.

Yes, how dare you focus on the actual benefits to consumers, DOJ!

A related letter from "Authors United," again seems to attack Amazon for daring to offer good prices to consumers, as if that's some sort of horrible antitrust violation.

Personally, I think it would be great if there were more competition in the ebook space, though we have seen it start to expand, with Apple, Google and others entering the market. But, the reason those companies (despite their own market power) have had trouble making a real dent in the market is because people really like Amazon. Amazon does a pretty good job making it easy and convenient to buy ebooks, to read reviews, to find similar works, and -- of course -- to read the ebooks as well. It would be great if there was more competition -- and that it would lead to lower prices, better features and less DRM. I'd be all for it. But that's not what the Authors Guild is arguing for. They don't want an open marketplace. They don't want competition. They want higher prices and less competition from the riff raff authors who aren't signed to big publishers and aren't members of the Authors Guild.

It's not hard to see the consistent logic behind all of this. The Authors Guild doesn't like the internet at all. It used to have a good thing in the old days, pre-internet. It could keep out the riff raff, anoint authors as the chosen ones, and make money off of those few giant authors. These days it's much harder and there is a real marketplace. The Authors Guild can't compete, so it runs to the government to "fix" things. It attacks internet companies like Google and Amazon not because they're doing anything unfair, but because they're actually bringing real market economics to the market for books. And the Authors Guild can't allow that to to continue.

Filed Under: antitrust, authors, books, copyright, dmca, intermediary liability, notice and staydown, notice and takedown, writing
Companies: amazon, authors guild, google