Last week, the Authors Guild requested that a judge order Google to in penalties for illegal copying of the works it had scanned for its Google Books project. (At 20 million books, that could add up pretty quickly.) The Authors Guild also wants a ruling definitively stating that copying books is not fair use.
$750 is an interesting figure, as Mike Masnick points out on Techdirt that it is actually the minimum statutory damage possible under the law. The Guild would be entitled to ask for up to $150,000 per work, which gets ridiculous pretty quickly. Of course, even $750 per book would total $15,000,000,000—that’s fifteen billion dollars.
Meanwhile, Google insists there is no evidence that its scanning has harmed even a single author, and that it has actually helped many—and that in creating an index rather than making the works available in whole form, it is making a transformative fair use.
Of course, by a strict reading of the law without exception, Google would be in trouble. It doesn’t deny that it did completely copy books that didn’t even belong to it. But the fair use defense exists to allow for uses that would ordinarily be violations but turn out to have beneficial uses that qualify them for exceptions. The crux of this case is whether Google Books qualifies for such an exception.
It kind of reminds me around some of the legal arguments in the early years of cable TV, that I learned about when I was studying broadcasting at college. Cable TV started out as networks of antennas designed to bring broadcast TV to people who lived in valleys that couldn’t get signal, and grew out from there.
And as cable TV operators found money in it, the cable TV operators and the TV station operators each claimed that the other was unfairly benefiting from its own effort: the station owners felt that the cable operators were making money from their content, and the cable operators felt the station owners were leeching a wider viewership from their network build-out. “You should pay us for the use of our stuff!” each side told the other.
To make a long story short, cable TV networks are still around today, no matter how much TV station owners once thought they were unfair. I suspect that Google Books will prove transformative enough that the courts will, eventually, deem it a fair use, at least to some extent.