The Authors Guild Forgets They Lost the Google Books Case, Proposes an ASCAP-like Agency to Solve the Issue
I was expecting to report on appeals filed by The Authors Guild, but it now seems that they are pursuing a legislative effort to overturn and erase both court rulings.
Earlier this week Jan Constantine, General Counsel of The Authors Guild, testified before the House Judiciary Committee. Her written testimony is posted online, and it is everything that The Authors Guild’s detractors fear the most.
The testimony focuses on the Google Books case, the HaithiTrust case, and the "need" to resolve the issues in the cases in ways that are beneficial to authors. This comes as no surprise, nor should it surprise you that, in 20 pages of testimony, there is no mention of the rulings which ended both of those cases (and expanded fair use in the process).
But the testimony does include misleading statements like:
To the extent Google’s unauthorized displays of books encourages readers to search at its ad-supported search engine, rather than logging in to Amazon’s retail environment, Google is hurting the sales of authors’ books. For this reason, and many, many others, authors and other rights holders should have control of when their books are copied in their entirety, and where their books are displayed.
Google, in other words, disrupted the commercial, permission-driven development of booksearch-and-display at online bookstores in order to gain a competitive advantage over other search engines.
On a related note, this written testimony is worth reading if only for the fact that it is the first (and probably the last) time that The Authors Guild has said nice things about Amazon. The novelty of that alone made this worth my time.
The Authors Guild has very carefully neglected to mention to Congress that the issues they want Congress to solve have already been addressed in the courts. Instead, The Authors Guild is asking Congress to pass new laws to "solve" the copyright issues in ways that effectively nullify the rulings.
Here’s The Authors Guild’s own summary of what they want:
1. We’re proposing that Congress empower the creation of a collective licensing organization (something like ASCAP or BMI) to deal with both mass digitization and “orphan” books. Such an organization would pave the way for a true national digital library, but it would have to be limited in scope, just as ASCAP is.
Here are the key components:
A. Authors get paid for the uses, naturally.
B. Licenses would be non-compulsory. Authors get to say no.
C. Licenses would cover out-of-print books only. No disrupting commercial markets.
D. Display uses only. No ebooks or print books.
E. There would be a tribunal to go to if the licensing agency and an institution couldn’t agree on the fee.
Does anyone else see the problems here?
The first and most obvious problem is that the agency proposed here would "solve" an issue which had already been settled in court. It is also incredibly limited in scope, and is hobbled in ways that worry me.
In particular, this agency is supposedly intended to solve the orphan works problem (where no one knows who owns the copyright to a work), but given that participation is voluntary I don’t see how that is possible. If you don’t know the identity of the copyright holder then it is impossible for that person to sign up. This leads me to wonder whether stage two involves either a compulsory license or an opt-out license. In either case the cure is worse than the disease.
I would say it is clear that The Authors Guild has given up on directly fighting the court cases they lost and have instead decided to try to get Congress to overrule the courts. it’s too early to say whether they will succeed, but I for one hope that they fail. As a creator, I think that my interests are better served by the fair use rulings than by the creation of yet another government agency which is supposed to help me.