Goliath, 1 — Creators, 0

By Deborah Jones
Published November 14, 2013  

Google won a skirmish today in the exhausting copyright war between the company and the United States’ Authors Guild, over its Google Books project to digitally scan the world’s books. The guild maintains that Google is violating copyright – and in 2005 it  launched a suit against the company.

Judge Denny Chin of the United States Court of Appeals for the Second Circuit ruled in favour of Google, on the grounds the project has public benefits, constitutes fair use, and public access to digitized books is actually good for authors because it facilitates their book sales. The ruling is here.

The guild said in a statement it will appeal the decision. “We disagree with and are disappointed” by it, said executive director Paul Aiken. “This case presents a fundamental challenge to copyright …  Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense.”
Supporters of Google’s book-scanning project, from an advocate for people with disabilities to a web site exploring the disruption of media, cheered. “The announcement of this ruling is a joyful occasion for all blind Americans because it paves the way for full and equal access by the blind and others with print disabilities to the knowledge contained in millions of books,” stated the National Federation of the Blind. “It’s nice to see someone supporting the idea that there is a public benefit to the widespread availability of content,” wrote Mathew Ingram on Gigaom.
But the crowd loudly clamouring “information wants to be free” might consider that this epic dispute is no battle of equals:
  • While the guild includes wealthy creators of blockbusters, such as author Scott Turow, most of its members qualify for inclusion if they eke out a mere $5,000 U.S. in income over an 18-month period.
  • Google, in just its last quarter ending September 30, reported revenues of $14.89 billion.

Google states that its mission “is to organize the world’s information and make it universally accessible and useful.” It also says, in a 10-point statement about its philosophy, “You can make money without doing evil.”

The Authors Guild claims to be America’s “leading advocate for writers’ interests in effective copyright protection, fair contracts and free expression.”
Useful, organized and accessible information is terrific. So is making money “without doing evil.” But as all creators know, free expression is only “free” so long as there’s a way of funding it. It’s very nice to be able to claim a moral high ground by providing books for people who are blind at no charge. It would also be nice if someone — anyone, please — would provide a sustainable model for creating books, to ensure they’ll continue to be written in the future.
Excerpts of Chen’s decision:

“In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences,while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers,librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers.Indeed, all society benefits.”

“Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement,Google’s actions constitute fair use here as well. Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law. The libraries then use these digital copies in transformative ways.They create their own full-text searchable indices of books,maintain copies for purposes of preservation, and make copies available to print-disabled individuals, expanding access for them in unprecedented ways. Google’s actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use.”

Copyright © 2013 Deborah Jones