The Authors Guild received a major setback in last Friday's appeals court ruling over the decade old Google Books lawsuit, but they're not giving up.
And that's a shame, because if The Authors Guild wins then we're all going to lose.
On Friday The Authors Guild announced that they were going to waste even more money by appealing the case to the US Supreme Court. You can read a fisking of TAG's statement over on Konrath's blog, or if you prefer the unfiltered version, you can find it at the end of this post.
That is, if you can stand the BS. The statement is chock full of ridiculous statements like "America owes its thriving literary culture to copyright protection."
That, my dear, is utter nonsense. Until the 1976 Copyright Act was passed, the US copyright law limited the copyright term to 56 years and required that a copyright be registered and renewed after 28 years, otherwise the work was in the public domain.
By modern standards, that would best be described as a lack of copyright protection, because it let publishers ignore foreign copyrights unless that copyright was also registered in the US, and it made every work more than 56 years old fair game.
The Authors Guild is wrong in almost everything they say in that statement, and they are also completely wrong to pursue this doomed effort to force Google to pay for the use of excerpts.
Speaking of which, The Authors Guild is also trying to do an end run around this case. Last April TAG went before Congress and proposed an ASCAP-like agency which would collect micro-fees from Google and other companies for the use of snippets (even though said use is completely legal).
That bit of lobbying hasn't gone anywhere (yet), and that's a good thing because that agency would be just as much of a fiasco for authors as if The Authors Guild's had won the Google Books case.
There are many reasons to argue against The Authors Guild's position, but I have one which will trump every counter argument.
This is 2015, so one could argue that the book market is very different from the one in which TAG filed its lawsuit in in 2005, and thus the lawsuit no longer makes sense.
Or one could argue legal theory concerning fair use. One could also argue that authors and publishers benefit from the free advertising that stems from Google Play Books, and the way that it helps readers discover books that they'd never heard of before.
But never mind those arguments; here's an argument that is irrefutable.
This lawsuit won't succeed. Google will not pay the fees.
So far this story is being covered from the viewpoint of the book industry, but if we instead focus on the issue of Google then we are reminded that publishers have tried to force Google to pay for the use of snippets and/or links in the past.
And it was an utter failure. Every. Single. Time.
In Germany, for example, news publishers have been trying to get Google to pay for snippets since 2010. The publishers even went so far as to get a law passed which explicitly created a copyright over snippets.
Rather than pay, Google responded by changing its ToS, forcing German web publishers to agree to let Google use the snippets and links for free - otherwise Google would not list them in its search engine. (Those pubs even filed suit over that law, but the suit went nowhere.)
Google would not pay the German publishers.
In 2006, Belgian news publishers sued Google over its use of snippets and links in its search engines. The publishers won the copyright infringement suit, only to realize that they actually lost when Google complied with the ruling and removed those publishers from its search results.
The Belgian publishers ended up having to settle with Google and agree to let Google use their snippets and links for free - that is how much value it brought them.
Even a victory ultimately turned into a defeat.
That closure has had a direct negative financial impact on Spanish news publishers. Furthermore, the shutdown disproportionately impacted smaller news publishers, forcing many to either close or curtail operations.
Google will not pay a fee for giving away free advertising - not to web publishers, nor to book publishers and authors.
If The Authors Guild gets what it wants then it will soon realize that it has still lost. And so will everyone else.
Mark my words: Google would rather shut down Google Books than pay authors and publishers.
And if that happens then we're all going to be screwed. Authors and publishers will take a direct hit to the pocketbook, but the public will also lose a valuable tool for finding books.
Here's The Authors Guild's statement on the appeals court ruling:
Today, the Second Circuit Court of Appeals released its decision in Authors Guild v. Google. “The Authors Guild is disappointed that the Court has failed to reverse the District Court’s faulty interpretation of the fair use doctrine,” said Mary Rasenberger, Executive Director of the Authors Guild in New York. “America owes its thriving literary culture to copyright protection. It’s unfortunate that a Court as well-respected as the Second Circuit does not see the damaging effect that uses such as Google’s can have on authors’ potential income."
"Most full-time authors live on the perilous edge of being able to sustain themselves through writing as a profession, as our recent income survey showed, so even relatively small losses in income can make it unsustainable to continue writing for a living. We are disheartened that the court was unable to comprehend the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, our literary heritage. We trust that the Supreme Court will see fit to correct the Second Circuit’s reductive understanding of fair use, and to recognize Google’s seizure of property as a serious threat to writers and their livelihoods, one which will affect the depth, resilience and vitality of our intellectual culture.”
images by Patrick Feller,