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

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

Leval On Fair Use And Google Books: A Sketch Of A Story

from the check-out-pierre-leval dept

Last night Judge Pierre N. Leval, a renowned fair use scholar and judge on the Second Circuit Court of Appeals in New York, delivered the Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property (you can watch the recording at that link) at the law school where I teach, the American University Washington College of Law (whew). "Lecture" doesn't really do it justice, though; Leval may have spoken in front of a lectern at a law school, but what he said was hardly dry or academic. Instead, it was a bravura exercise in storytelling, which is fitting, as storytelling and narrative are some of Peter Jaszi's favorite subjects, second only to fair use.

Judge Leval recently authored the landmark opinion in Authors Guild v. Google, vindicating Google's massive digitization program which, in collaboration with research libraries all over the country, has made more than 20 million books full-text searchable and available for data-mining with the very cool Ngram Viewer. The opinion was the apotheosis of 25 years of fair use case law set in motion by Judge Leval himself in a 1990 law review article entitled "Toward a Fair Use Standard." Now here was the man himself, ready to talk about fair use in the digital age, and in honor of transformative use's most vociferous defender.

Judge Leval's lecture, like his opinion, told the story of fair use, from "rudderless" meandering after codification in 1976, to a pair of half-baked Supreme Court opinions in the 1980s, and, finally, to salvation in Justice Souter's opinion in Campbell v. Acuff-Rose, which was (though Judge Leval humbly never said so) largely a judicial endorsement of the analysis published a few years earlier in Leval's article. (As Public Knowledge's Raza Panjwani pointed out, the article is cited 16 times in the opinion.)

I'm a law professor, and a fair use obsessive. I've written a lot about this stuff in scholarly and non-scholarly contexts. So, I should have been listening to every single word Judge Leval said, parsing it like the Talmud for meaning and guidance. Instead, I got out my iPad and made cartoons. I'm sure I'll be re-watching the lecture many times for all that nuance, but the chance to live-tweet with sketches of the man himself was once-in-a-lifetime. So, I present for you below the broad outlines of the story of fair use that Judge Leval told last night, together with some of my drawings from the event.

Introductions: Peter Jaszi the rock, Judge Leval the redeemer

In his introductory remarks, Professor Michael Carroll, the director of AU's IP program, paid tribute to the namesake of the lecture, Peter Jaszi. Peter has been a mentor to many, many copyright lawyers and scholars in this town (including me!), and, as Michael said, for decades Peter was a one-man IP program at AU: For his part, Peter Jaszi highlighted the transformative (ha!) impact that Judge Leval has had on the doctrine: Act I: In which Judge Leval's fair use opinions are reversed over and over for dumb reasons and he considers mouthing off to the Second Circuit

Judge Leval began his talk the same way he began his landmark article, with a kind of mea culpa, but really an indictment of the whole judiciary and its treatment of fair use. Early in his judicial career, Leval (then a district court judge) had been reversed by the Second Circuit on appeal in a series of cases involving unpublished works excerpted in scholarly and critical books. The rationale for the reversals—that unpublished works can never be the subject of fair use because of the so-called "right of first publication"—struck Leval (and most of the rest of the world) as bizarre. In particular, it seemed like a major problem for people who want to write about history, which often involves quoting unpublished letters and other primary materials. How, other than to quote him, can one credibly show (as the defendant in one of these cases sought to do) that L. Ron Hubbard wrote awful, retrograde garbage, not gospel? But unpublished works, the 2nd Circuit said, were off-limits. When he was instructed by the Second Circuit to rehear the case with that silly per se rule in mind, Judge Leval was sorely tempted to take a swipe at their stupid rule: But, he said, he decided to cut that line, "because nobody likes a wise-ass." "It was exhilarating to be on the cutting edge of the law, even though the role assigned to me was that of the salami," he added.

Act II: In which the Supreme Court mucks things up even more, despite reaching the right outcomes

Next, Leval described how, in its two big fair use cases in the 1980s, the Supreme Court reached the right conclusions but dropped a series of silly and misleading duds into the doctrine in the process. First, in Sony v. Universal, the court rightly found that of course making and selling VCRs was not somehow a massive infringement enterprise: In the process of exonerating the technology, though, the court decided to reach out and opine on the question of whether it is fair use to tape television shows in order to watch them later. And, in the process of making this (Leval seemed to say unnecessary) determination, the Court opined that "commercial uses are presumptively unfair." What? This was kind of a shock, since several core fair uses, including news reporting and criticism, are often done in the context of a commercial enterprise. The presumption proceeded to wreak havoc for almost a decade before Campbell came along to correct it.

Then, in Harper & Row v. Nation, the Court decided (rightly, Leval figured) that the Nation had not made fair use of about 300 words from Gerald Ford's forthcoming autobiography by excerpting it in their magazine. In addition to the legitimate question of the market prerogatives of Harper & Row regarding publication of basically the only interesting stuff in their book, the Court considered and condemned the fact that the Nation had come by its copy of the book by means of a purloined manuscript. "Purloining is baaaaaad!" Judge Leval intoned in a mock condemnation, and "'Fair use,' Justice O'Connor wrote for the majority (citing an earlier case), 'presupposes good faith and fair dealing.'"

Hogwash, said Judge Leval. "If conduct does not break any law, or violate anyone's rights, it does not become illegal or actionable because the actor had an evil heart." Imagine the facts had been different, Judge Leval suggested. What if the Nation had "purloined" a document that proved Nixon had bribed Ford with millions of dollars for the pardon? Surely the purloining would not undermine the fair use of this clearly newsworthy information.

Once Judge Leval got going about the purposes of copyright, it became clear that he had arrived at a particular phrase to summarize that purpose: "the enrichment of public knowledge." He had used it several times in the Google Books opinion, but it really tripped off his tongue during the talk. I guarantee he said it at least ten times: Act III: In which Campbell saves fair use, and Google Books follows logically therefrom

Judge Leval passed humbly over what happened next, but I won't: his article, "Toward a Fair Use Standard," was published in the Harvard Law Review. That article contains, at greater length and with plenty of caselaw, the very same story of fair use that had so far occupied the talk: First there was the fair use doctrine, which was kind of a mess; then there were Judge Leval's opinions, which were not crazy but also mostly "from the gut"; then there was this silly rule about unpublished works; then there were these two SCOTUS cases that had really made a mess of things, even if the outcomes might have been right. Judge Leval proposed a solution in his article: to decide fair use cases in a coherent way, courts should focus on whether a use is justified by serving the underlying public interest goals of copyright, namely (drumroll) the enrichment of public knowledge, without serving as a market substitute for the works they use. When a use does this (enriching PK and not substituting for the original), Leval proposes we call it "transformative."

Leval skipped right past the fact that he had personally proposed the solution, instead heaping voluminous praise on Judge Souter, who wrote the majority opinion in Campbell v. Acuff-Rose, adopting Leval's framework almost completely. This brought to an end "250 years of rudderless drift" in fair use case law. In that 1994 case, the Court reversed a lower court's ruling that 2 Live Crew had infringed on the copyright in Roy Orbison's "Oh, Pretty Woman" by using the core hook and melody of the song in its rap song "Pretty Woman," which was a decidedly raunchier ode to a woman walking down the street. The lower court had applied Sony and found this commercial use to be presumptively unfair, a presumption that the Crew did not overcome. But the SCOTUS majority in Campbell noted that the new song was very different from the original in terms of its meaning, and indeed could be seen (though this is debatable) as a parody of the original, and this was precisely the kind of enrichment of public knowledge that fair use should permit. Campbell embraced the transformative use framework, abandoned the commerciality presumption, cautioned against searching for presumptions, rolled back some of the harmful stuff about good faith, and suggested that injunctions were not necessarily an automatically great idea for any alleged infringement.

Leval was over the moon. Indeed, he paid tribute to the opinion in a keynote speech at Cardozo Law School shortly after the opinion was issued.

Now, 20 years later, along comes Google Books. Judge Leval went straight from Campbell to Google Books, and argued that Campbell had provided a flexible doctrine that could easily accommodate technological uses like Google's.

After describing in minute detail how Google Books was created and how it worked, Leval mentioned that initially his Court was asked to hear an appeal of the question of class action status. The Authors Guild and some of its members purported to speak for all authors of copyrighted books in demanding that Google seek permission before scanning and indexing their books. Judge Leval wondered whether some authors (and publishers) might not be perfectly happy to have their books discoverable in Google Books, even without their affirmative consent: But rather than try to pick apart that sticky issue, Judge Leval said he had a sneaking suspicion that if they could decide the fair use issue, the rest would be moot. So, the Second Circuit sent it back to the district court, who dutifully decided the use was fair, teeing the issue up for appeal.

Leval noted that some aspects of Google Books might have seemed novel to a court hearing the case in 1994. In particular, the use of entire works, indeed of multiple entire works, might seem like a stretch given the concern with "amount" in the statute. However, with the transformative use framework at hand, courts were able to recognize the use of entire works can serve radically new purposes, and avoid serving as market substitutes. This was especially true in cases involving technology, like A.V. v. iParadigms, in which Leval said "A student whose plagiarism was detected by this machine had the chutzpah to sue!" The use was fair, of course, because the purpose was transformative ("to provide information about the original") and valuable and the software was not offering substitutes for whatever market there might be for student papers. "Because the public had virtually no access to the original books, our case was very similar," Leval explained, at least regarding creating the database on the back end. "Snippet view" might pose a harder question, but Leval explained in detail why this function was not a market substitute for the books. "Our decision was very much pinned to highly specific facts of how Google restricts the snippet function." The evidence showed a searcher would find it essentially impossible to reconstruct a market substitute from searching the book for sequential snippets.

From here I actually tuned in a little more closely, and didn't do so much drawing. While much of this part of the talk was a recapitulation of the opinion, there were some interesting asides. For instance, he mentioned with approval the opt-out option that Google provides to authors (and other rights holders) who don't want their works to appear in Google Books. This feature had been pooh-poohed by many critics as a fig leaf, but Judge Leval found it to be a compelling protection against unwanted exposure. "If this had been true from day one, our decision might have been very much briefer," he observed, suggesting the fair use case would be open-and-shut.

Conclusion: "Fair use is neither incomprehensible, nor is it explained by arcane rules"

This was where Judge Leval brought it home, with wisdom that is especially poignant given that this was a lecture in honor of Peter Jaszi, who has spent much of his career empowering ordinary people to exercise their fair use rights. Q&A: Off the record!

Judge Leval asked that the question and answer period be done off-camera, but I did capture a couple of the questions that were asked:



Hopefully some of the policymakers in the crowd were listening to Judge Leval's observation that statutory damages reflect a Victorian view of morality divorced from the public interest purposes of copyright, which might favor allowing infringement so long as reasonable actual damages are paid. I think the Judiciary Committee staffers in the room could hardly stand up from their seats before the advocates in the room descended upon them to hammer that point home.

I was personally gratified by his answer to one of the last questions, which suggested (in the mode of devil's advocate) that the statute had embodied a "balance" in 1976 that had been upset by the subsequent "expansion" of fair use. Judge Leval explained something I have always strongly believed, namely that the four statutory factors that allegedly govern fair use (roughly: purpose and character of the use, nature of the work used, amount, and market effect) are almost completely meaningless on their face. They don't embody anything, in particular - not a "balance" or an "imbalance." They're just placeholders for the broader idea that some uses should be allowed without permission when they serve, and do not undermine, the purposes of copyright. Without knowing what kinds of purposes are favored, which sorts of works should be used, how to tell if the amount is appropriate, etc., the factors are just a mess. That's why you need to get outside the statute and look at the overarching purposes of copyright, and once you do that, you can begin to apply the doctrine in a fairly coherent way. And that's what the courts have done.

I must say, I found Judge Leval to be a charming, funny, smart, and generous speaker. As someone told me after the lecture, it is always so nice when someone whose ideas you admire from a distance turns out to be a warm and interesting person in real life, too.

Filed Under: copyright, fair use, google books, pierre leval

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 Guild Argues That Google Books Should Be Infringing Because Aaron Swartz

from the wait,-what?!? dept

The saga of the Authors Guild v. Google Books continues to make its way through the courts. This has been going on for years and years, and we don't need to rehash all of the background, other than a few of the more recent situations. Last year, the case went to the 2nd Circuit appeals court, supposedly to discuss the Authors Guild's desire to make its case into a class action lawsuit. However, the appeals court judges basically ignored that issue, and said it was meaningless since it seemed pretty clear that Google Books was fair use. Thus, it sent the case back to the lower court asking it to determine if Google Books is fair use. The argument is that, if it's fair use, whether or not it's a class action is moot. The lower court dutifully declared Google Books fair use a year ago.

Now the case is back before the appeals court as the Authors Guild is insisting loudly that it's not fair use. Thankfully, the judges appear to be very, very skeptical. Perhaps this isn't a surprise, since they were the ones who last year were so focused on the fair use point. It seems clear that Judge Pierre Leval -- known for his support of fair use -- wasn't very interested in the Authors Guild bringing up false arguments that because Google makes money, Google Books can't be fair use:

In his argument Wednesday, attorney Paul Smith quickly sought to differentiate the Guild’s case against Google from its unsuccessful HathiTrust case, citing Google’s commercial nature. But almost immediately, Judge Pierre Leval shut him down, telling Smith he would not succeed by arguing that Google’s commercial nature precluded fair use. Smith, however, pressed on, arguing that Google’s scanning deprived authors of a potential market to license books for search. Again, Leval pushed back, noting the transformative nature of the use is what mattered, not whether somebody might potentially pay to make that use.

Another summary, from Courthouse News, notes that Leval compared Google to the NY Times:

Leval warned that Smith "would lose" the case if his argument was premised on the fact that "Google, like The New York Times, is a profit-motivated enterprise."

It makes no difference that, unlike Google, the Times stands to gain "dwindling, small profits" as opposed to Google's billions, he added.

Leval also, thankfully, was pretty clear in rejecting the idea that just because publishers could find someone to license a work it means everything needs to be licensed:

Smith argued that Google's business model prevented authors from licensing their books to companies like Microsoft, which he said was creating a licensed database before Google Books arrived.

"The test is not how transformative is the use," Smith said. "The test is this the type of use that would be licensed."

Strongly disagreeing with that point, Leval said. "You'd always find someone who would be willing to pay [a licensing fee] to avoid a lawsuit."

However, the craziest argument of all came from the Authors Guild's lawyers in which they tried to point to Aaron Swartz as a reason why Google Books shouldn't be fair use. The argument here is a bit convoluted: Google points out that it only shows snippets, not large swaths of scanned text. The Authors Guild then counters that maybe, just maybe, some enterprising hacker might figure out how to break into the backend and release all the text... because Aaron Swartz:

Google Books avoids copyright violations by only allowing users to read portions of books that match their searches, but the Authors Guild raised the possibility of hacker disseminating the digitized books in full.

Waxman emphasized that this has never happened in the history of Google Books.

In rebuttal, Smith said that he mentioned this concern in light of "an MIT student" distributing academic articles from a university database because he believed, "Information should be free."

This is clearly a reference to Swartz, but it's wrong in all sorts of ways (including that Swartz was never an MIT student). Swartz also never "distributed" those academic articles. He merely downloaded them. It's unclear if he actually intended to distribute them or not. He also didn't hack the system. He had full access to the articles he was downloading. And he didn't do it because "information should be free." As we've noted, that phrase tends to be a bogus strawman that copyright system supporters toss up to mock anyone who is in favor of fixing copyright law's problems.

No matter what, it clearly has no relevance whatsoever to the case at hand and whether or not book scanning to create a searchable index is fair use. The Authors Guild has been flailing about wildly for a while, and dredging up Aaron Swartz just seems to show how ridiculously desperate it's become.

Filed Under: aaron swartz, book scanning, commercial use, copyright, fair use, google books, pierre leval, transformative use
Companies: authors guild, google

Appeals Court Hints VERY Strongly That Google Books Is Fair Use, Even Though It Wasn't Asked About That

from the look-at-that dept

Back in May, we noted that the appeal in the Authors Guild case against Google over Google Books had taken something of an odd turn. The specific question on appeal had been entirely focused on whether or not it was appropriate to have this be a class action lawsuit for all authors. Google had, quite reasonably, argued that fair use can be pretty fact specific, and a very different analysis may apply for different kinds of books, and thus it would be a bad idea to lump all authors together in a class action lawsuit. However, the district court had ruled in favor of a class action, and supposedly it was that question that was being discussed on appeal. Instead, we noted that during the oral arguments, the three judge panel seemed to have no interest in that actual question, and instead talked about how Google's book scanning project seemed likely to be covered by fair use.

So, I guess it should come as little surprise that today's ruling on the matter barely even mentions the class action issue, other than to say that Google's argument "may carry some force." Instead it sends the case back to the district court, saying that it should do the fair use analysis first, suggesting that this might make the whole question of whether or not a class should be certified entirely moot. In other words, the Second Circuit is basically screaming to the district court: "what Google is doing is fair use, full stop, so we're wasting time arguing about whether or not this is a class action: just end the thing by saying it's fair use." The ruling is short and sweet and is a huge victory for Google. Here's the key part:

Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact, see Fed. R. Civ. P. 23(a)(2), (3), (b)(3). See, e.g., FPX, LLC v. Google, Inc., 276 F.R.D. 543, 551 (E.D. Tex. 2011) (denying plaintiffs’ request for class certification “because of the fact-specific inquiries the court would have to evaluate to address [defendants’] affirmative defenses [including fair use of trademarks]”); Vulcan Golf, LLC v. Google Inc., 254 F.R.D. 521, 531 (N.D. Ill. 2008) (“The existence of affirmative defenses [such as fair use of trademarks] which require individual resolution can be considered as part of the court’s analysis to determine whether individual issues predominate under Rule 23(b)(3).”); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.12 (1978) (“Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative’s claims or defenses . . . and the presence of common questions of law or fact are obvious examples.” (quotation marks omitted)); Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (“[A] court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”); cf. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (holding that “a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims”). Moreover, we are persuaded that holding the issue of class certification in abeyance until Google’s fair use defense has been resolved will not prejudice the interests of either party during the projected proceedings before the District Court following remand. Accordingly, we vacate the District Court’s order of June 11, 2012 certifying plaintiffs’ proposed class, and we remand the cause to the District Court, for consideration of the fair use issues.

I'm actually somewhat surprised at this. While I've argued from the very beginning that Google's book scanning project was clearly fair use (and was annoyed when it looked like Google was dropping that argument in its original settlement effort), it does seem a bit strange for the judges to jump straight to the fair use analysis across the board. I would guess that the Author's Guild, somewhat ironically, might now want to hit back with Google's own argument in trying to block the class, by saying that different authors have different arguments, and seeking a fair use judgment across the board wouldn't make any sense. Still, in terms of getting this many-years process finally over and done with, it seems like skipping ahead to the fair use analysis is probably the best way to finally settle the matter.

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

Google Books Data Mining Reveals Mad Men's Big Historical Flaw: Business Lingo

from the keep-a-low-profile dept

The TV show Mad Men has quite a reputation for going to great lengths to be as authentic as possible. The clothes, the props, the scenarios are all supposedly thought out in great detail. While some who were actually in the business at the time quibble with certain aspects of the show, it cannot be denied that the show's producers certainly go way beyond other period pieces to try to make keep everything accurate for the time period. However, it turns out that there's one area where it appears the writers have completely flopped: period-specific language. On The Media ran an absolutely fascinating clip about a researcher who has shown how frequently Mad Men uses words or phrases that were not in popular usage at the time, but only came into the lexicon at a later date:
This is actually a cross-broadcast of another podcast, Lexicon Valley, and it's covering the work of Ben Schmidt, who has produced a software algorithm that compares the Mad Men scripts... to a searchable database of language from Google's book scanning project. Schmidt's algorithm compares the language from the show with scanned books from the same period. Schmidt has a website, Prochronism, which covers his findings. I can't quite explain why, but it's really quite fascinating.

Schmidt has found that the show is pretty good about getting language about technology right (with one exception). It knows that there aren't fax machines and computers and stuff. The one area where it gets things wrong, is with the phone. For example, using the phrase "on hold." He notes that phones had hold buttons, but there wasn't yet a concept of the state of being "on hold." That showed up in the 70s.

What Schmidt has also found is that the show is absolutely terrible about getting "business" terms correct in a period specific way. That same post about "on hold" also chides the show for using "defining moment," another phrase that showed up in the 70s, but was basically stuck in academia until the late 80s or early 90s when it became a popular phrase.


Honestly, Ben's site is really fascinating. I could spend hours on it (and actually had to stop going through it post by post to finish this post). There are also discussions on phrases like "focus groups" and "leverage." But one more awesome chart from Ben, discussing the use of both "moral high ground" and "consumerism," both of which were barely in use until much later:


On the podcast, they discuss how part of the reason that the show gets the language about technology right, but not business, is because we know that technology rapidly evolves and we're more attuned to it. But people don't pay nearly as much attention to how business changes and especially how the language of business changes over time. I guess that's true, though it doesn't surprise me that "consumerism" and "moral high ground" are both more recent phenomena. "Defining moment" and "on hold" are a bit more surprising to me.

Either way, I also wanted to highlight something else about all of this that I find fascinating. For all the talk by some about just how evil Google's book scanning project is, this kind of effort and research wouldn't be possible without large scale scanning of books. While this particular example may appear (on its face) to be a frivolous (even if it's fascinating) area of research, it does highlight just how collection of certain data can open up vast arrays of data that can be mined in useful ways. When people freak out about new technologies and services, they almost always focus on how it impacts the old offerings. So most of the talk was about book scanning and its impact on book sales. But what almost no one talks about is how it enables new things that simply weren't possible before -- such as being able to build an algorithm like the one Ben built. Those kinds of innovations -- the unexpected "externalities" of projects like the Google book scanning project -- shouldn't be ignored, because there's tremendous value that can come out of them.

Filed Under: ben schmidt, data mining, google books, history, language, mad men, television

Court Says Authors Guild Has Standing To Sue Over Google Books, Despite It Not Representing Authors' Views

from the unfortunate dept

About a month ago, we wrote about how Google was trying to convince the judge in the Google book scanning case that the Authors Guild did not have standing to sue on behalf of authors. This was, in part, because different authors would have very different issues (especially on the fair use analysis), but also because lots and lots of authors didn't seem to have a problem with what Google was doing (especially considering studies that have shown being in Google Books helps sell more books).

However, the judge in the case has ruled, mostly on a procedural basis, that the Authors Guild does, in fact, have standing to sue. It argues that associations have long been allowed to sue on behalf of their members, and the fair use analysis questions aren't really a big deal. At worst, the court says it could split up the "classes" into different groups, so that those with specific issues could be judged separately. Of course, you could just as easily make the argument that this reasoning should have resulted in the opposite conclusion. If the court is going to lump different groups of authors into different camps, then shouldn't each of those groups create their own class action suits, rather than putting them all under the Authors Guild's umbrella? No one is arguing that there can't be a class action lawsuit if the relevant class is assembled. There's just a big question over whether or not the Authors Guild really represents the interests of the people included in the classes. And the judge doesn't really address that question, other than to say those who don't have a problem with Google Books can more or less opt-out of the class.

On one point, however, the judge's reasoning does make sense: why did Google wait so long to challenge the Authors Guild's standing. Elements of this case have been going on for many, many years. It does seem a little off to file this particular point so late.

I doubt many people are that surprised by the ruling, but it does mean that Google will have to continue the Google book scanning fight against the Authors Guild. In the long run, I still think any result only ends up harming the Authors Guild. They are showing themselves to be anti-innovation luddites who disregard the interests of the majority of their members, while grandstanding against any new technology that upends the old publisher-gatekeeper model. That may be useful for some big name authors they represent -- since it's all about keeping out competition from new authors, but it's no path to the future.

Filed Under: authors guild, class action, google books
Companies: google

Literary Critic Blames Google For 'Undermining The Literary Tradition'

from the someone's-not-feeling-lucky dept

Reader dave blevins alerts us to a recent column by literary editor Robert McCrum, where he appears to blame Google for destroying literature. It's an oddly written piece, actually. I believe it's sort of supposed to be a review of a book by long-term publisher André Schiffrin, called Words & Money, but it quickly turns into a rant, where McCrum feels that Schiffrin is so "disoriented" by what's happening in the publishing industry that he fails to adequately blame Google and its book scanning project:

It is a measure of the profound disorientation experienced by seasoned professionals in this new environment that nowhere in Words and Money does Schiffrin really get to grips with the so-called Google Print Initiative, the biggest copyright heist in history.

And, once started, he decides to go after that project, noting that the old way of doing things is being "torn up [as] a new one (entitled "free") was being written, mainly by geeks in California." And, the problem, of course, is that Google Books is apparently destroying the ability of authors to make money:

Books, like newspapers, are an essentially middle-class phenomenon whose market is the self-improving professional. As a bourgeois medium, books and their authors depend on the cash nexus. Johnson went straight to the point with: "No man but a blockhead ever wrote, except for money."

Johnson was right. Words that get written for money are likely to be superior to words spun out for nothing, on a whim. California's "free" movement wants to argue that literary copyright is an intolerable restriction of the public's right to access information, and that words should be free. That's a profound threat to the western intellectual tradition. I hope that André Schiffrin, having raised the alarm about the demise of serious publishing and journalism, will urgently turn his attention to the new, possibly darker, threat of digitisation and its consequences.

McCrum is, of course, quite confused. In his rush to condemn in elitist tones, it appears he did not bother to understand the details of what he was criticizing. The first problem, of course, is that he has confused "free, as in speech" with "free, as in beer." When people talk about "freeing" words, they do not mean that people should write without money. So the entire argument made here is silly. We just think that there are other business models that fit better.

And, in fact, Google Books seems to help those who embrace it. We recently pointed to some researched that showed the Google book project was increasing revenue for publishers who embraced it -- and publishers who have embraced it have been quite happy once they realized the benefits. Nothing about Google's book scanning project is about making the works entirely free, so McCrum seems rather ill-informed on the subject.

There are plenty of legitimate criticisms of Google's book project (and I still think the "settlement" is problematic), but the idea that it's somehow "undermining our literary traditions," is a statement wholly without support, and one that you would think an elitist literary critic would find some proof behind before making such a statement.

Filed Under: andre schiffrin, copyright, free, google books, robert mccrum
Companies: google

Using Google Books To Remove Access To Public Domain Books

from the that's-evil dept

Michael Scott points us to a blog post at Mike Cane's blog discussing a question asked in the Google Books help forum asking whether or not a publisher named Kessinger Publishing is taking public domain books scanned by Google, printing them, and then trying to block Google Books from offering the whole thing.

The details are a bit sketchy at this point, but it does seem like Kessinger is taking the public domain books scanned by Google and then offering them for sale. The guy investigating it notes that some of the covers on Kessinger's books clearly show the Google Books-generated cover. Now, it's important to note that Kessinger reprinting public domain books scanned by Google is perfectly legal (perhaps an argument could be made that Google could claim copyright over some aspect of that cover page it generates, but even that seems like a stretch). There's nothing infringing (at least in the US -- elsewhere, it's a bit unsettled) about taking someone else's scan of public domain works and then publishing it yourself.

What's worrying here is the claim that once Kessinger "republishes" these works, that it's somehow getting Google Books to no longer show the full editions of the books. It's not quite as bad as the initial person claims -- that Kessinger is "taking books out of the public domain," as the books do, in fact, remain in the public domain. The real question is why Google is restricting access to these works. If I had to guess, it's probably due to the fact that Google keeps getting hit with (questionable) copyright lawsuits, so they have a "lock-up first, ask questions later" sort of approach to these things. Unfortunately, if that's the case, it lets publishers effectively hide books that should be freely available, at least for the time being.

Filed Under: copyright, google books, public domain