Authors, Nay, EVERYONE Will Get Screwed If The Authors Guild Wins the Google Books Lawsuit
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.
And finally, in 2014, Spain passed a Google tax that made the payment of fees for the use of snippets compulsory. Google responded by shutting down Google News in Spain.
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,
Greg Strandberg October 20, 2015 um 11:49 am
I’m happy Google Books exists because it allows me to find tons of old books that I can use for research. Sometimes my library has these, but many times they don’t.
This increases my efficiency a lot and I’m sure my publishing output is higher that it would have been for people that had to rely on physical books alone. The keyword function itself surely saves days, if not weeks, of research time.
Liz October 20, 2015 um 1:48 pm
I would be really interested in who is financing this lawsuit. You can’t tell The Authors Guild has buckets of money. Someone has to be paying for this.
Frank October 20, 2015 um 2:55 pm
Typo in "copyright term to 56 tears". It should be 56 years.
Nate Hoffelder October 20, 2015 um 3:17 pm
I fixed it, thanks Frank.
fjtorres October 20, 2015 um 2:58 pm
56 tears works fine, especially when it comes to the tradpub world.
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William Ash October 21, 2015 um 9:16 am
The Authors Guild needs to win. Why can a very rich for-profit rich company simple steal people’s work to benefit from it? The AG has really screwed this up, but to continue to allow corporations exploit creative workers is disgusting.
Nate Hoffelder October 21, 2015 um 9:49 am
This argument is as ridiculous when applied to Google Books as it is when made about websites in Google’s search engine.
William Ash October 21, 2015 um 11:14 am
No, it isn’t. Google is copying the entire book and using it for its business. Google does not copy web sites. Even libraries pay for the copy they put on a shelf and they are not allowed to copy that book.
Nate Hoffelder October 21, 2015 um 11:54 am
Yes, Google does copy entire websites into its servers. They’ll even let you see it (it’s called the Google cache).
William Ash October 21, 2015 um 12:01 pm
Google has an entire copy of the internet sitting on its servers? So you are saying there are two internets? That is a lot of data.
Naturally, you are having a problem with the idea of copyright, which is to protect the work of authors. Why doesn’t Google just buy the books? Are you against paying authors for their work? Or do you think that for-profit corporations just get a free ride? Do you think creative people like photographers and designers that make contracts with publishers over the use of their work in a publication can simply be ignored because Google wants their work?
Nate Hoffelder October 21, 2015 um 1:41 pm
I’m not going to address your straw man arguments, but if it really bothers you so much then tell Google to stop sharing the scans of your IP. You have that right.
But what you don’t have is the right to interfere with other people’s IP. And that’s what you’re trying to do when you fight against Google Books.
Peter Winkler October 18, 2016 um 3:02 pm
I agree. Google is a financial behemoth. They should compensate authors or their estates for the use of their work, which Google benefits from.
Frank October 21, 2015 um 12:06 pm
Google has a copy of most of the internet on its servers. Yes, Google stores a lot of data.
William Ash October 21, 2015 um 2:46 pm
Nate, it seems your entire argument is based on that you are "right" and so you can insult anyone that disagrees with you. Apart from that, you do not seem to have much of an argument.
Nate Hoffelder October 21, 2015 um 3:02 pm
I didn’t insult you. I said your initial comment was ridiculous, and described the latter arguments as a straw men. The former comment might not be a major contribution to the discussion, but it did not insult you. And I stand behind my other comment.
Nate Hoffelder October 21, 2015 um 7:02 pm
I’m going to have to retract that previous denial, William, and apologize. I ran a quick poll on Twitter and almost everyone said I did insult you. For that, I apologize.
Eric Welch October 22, 2015 um 9:25 am
The AG argument would have much more resonance if authors were the ones to benefit from copyright. Most of the time it’s the publishers who see the profits gained from copyright monopoly. The length of copyright for text and patents is ridiculously long. I’d support the AG if they included a change to copyright request that copyrights were valid for 25 years only before reverting to the public domain and that copyright belonged solely to the creator, in this case the author or inventor, who solely could benefit from that copyright and it could not be sold or transferred even to heirs after that 25 years. Publishers could still pay for the right to sell the work but the terms should be far more favorable to authors than they are currently.
Marion Gropen October 17, 2016 um 12:30 pm
Eric Welch, The minimum possible length that we can have and still be included in Berne is life plus 50. There’s no practical difference between that and life plus 70.
Leaving Berne would GUT our international trade.
Changing Berne is next door to impossible.
The only practical solution is to make it easy to buy permissions. In order to do that, we need only expand the extant Copyright Clearance Center or create a similar sort of system in the LOC’s Copyright Office.
But let’s stick with things that aren’t going to cause a major economic disaster.
Marion Gropen October 17, 2016 um 12:31 pm
As far as publishers getting the profits — you’re clearly not all that closely attuned to who gets how much of the contribution margin, much less the profit margin, on each sale.
But there’s no reason authors would know that. Would you like me to run the numbers here?
Peter Winkler October 18, 2016 um 3:08 pm
A patent lasts 17 years with no possibility of renewal. That’s not long at all.
Publishers and authors benefit equally from the exclusivity of copyright. Without it, a publisher could invest thousands in publishing a book, only to see someone come along and pirate it without consequences. Both the publisher and writer would lose.
Sarah Duncan February 13, 2016 um 6:17 am
The copyright belongs to the author not the publisher. Always has, always will – unless they specifically gave/sold it to someone else. Publishers pay the author hard cash up front for the right to publish the book for a specific time. Authors use that cash to buy food and pay for heating and lighting etc.
In effect you are saying it’s OK for Google to steal – because that’s what taking without asking is called – an author’s book on the grounds that the public want free books.
I work damn hard to write a book, and it’s my choice about who I sell the rights to and for how much. If I want to give them away, that’s my choice. If I want to charge massive prices for them – and risk getting no buyers – that’s my choice. If I make stupid choices, well, that’s my look out. My work = MY choice. Not Google’s.
Nate Hoffelder February 13, 2016 um 7:57 am
Or until the copyright expires, or until Congress or the courts decide to add a limitation to your government-granted monopoly. One of those limitations is called fair use, in the case of Google the exact same fair use rules were applied to digitized books that apply to websites.
What you call stealing is exactly what search engines do with websites everyday, unless we tell them not to. (You also have the option to tell Google no.)
As even a cursory reading of the law will tell you, you don’t have nearly as much control as you think you do.
Nate Hoffelder February 13, 2016 um 8:17 am
And one other thing.
Here in the US copyright explicitly exists for the benefit of the public, and not for the benefit of creators. That’s why we have fair use in the first place, and that is why Google can digitize books. The public benefits from that digitization,and that includes you.
Peter Winkler October 18, 2016 um 3:15 pm
Fair use has been interpreted by the courts to be limited to about 300-500 words from a book and no more than 10% of a short work like a newspaper or magazine article.
I have been able to read many times more than that from a book in Google Books while conducting research.
Also, you wrote "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."
Congress revised the copyright law in 1963, lengthening the term of copyright and dropping the renewal requirement.
Nate Hoffelder October 18, 2016 um 3:34 pm
Yes, because the copyright holder is allowing that to happen. This is an option in Google Books.
No, those changes were made in the 1976 Copyright Act, and then a law passed in the 1990s retroactively extended the new rules to cover existing works:
Marion Gropen October 18, 2016 um 7:44 pm
Fair use is more complex than 300 – 500 words. There are times when 3 to 5 words will infringe, for example.
In the prior case law on fair use with respect to search engines: the scan, building of a search index, the storage of the work entire, the serving of snippets or thumbnails in search results, and the use of opt-out-only have all been held to be fair use.
That’s WHY Google had to go to such lengths in order to ensure that it got sued. No one wanted to start a losing suit, and we all knew it would lose if the scan and indexing and serving of snippets of books was all that they did.
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Marion Gropen October 17, 2016 um 12:26 pm
Nate: Copyright was extended to finally allow the US to join the Berne Convention.
Until we extended it, and added the copyright-on-creation (as vs. on registration), we were grossly in violation of global norms.
Since a huge part of our balance of trade involves the sale of IP, joining Berne was a very good thing.
I’m not quite sure why the Author’s Guild is continuing to sue Google. I suspect that pressure by authors who don’t quite understand search and index is part of it.
Looking at the backstory, Google did some pretty heinous things in order to force publishers and the AG to sue. Most of the plaintiffs dropped the case as soon as Google got its needed ruling (scan, index, and snippets are fair use), and it agreed not to do the nasty stuff. That still seems to me to be the reasonable option.
BDR October 18, 2016 um 11:13 am
TAG may WANT SCOTUS to hear this thing but if wishes were horses beggars would ride.
This isn’t the kind of issue that would interest SCOTUS. The lower court ruling will stand and TAG is simply continuing their worthless role in society.