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Google Book Settlement

Authors Guild v. Google (Whether scanning and showing book text is fair use)

Authors Guild v. Google (Whether scanning and showing book text is...

Google Books

Introduction

In 2004, Google undertook an ambitious project to scan and preserve every printed piece of material in the world. This eventually caused great consternation with copyright holders and led to The Authors Guild filing a lawsuit, among others, alleging that Google’s scanning and subsequent book text index was an impermissible infringement on copyright. The suit appeared to reach a resolution in 2009 when The Authors Guild and other plaintiffs agreed to a settlement with Google. This settlement required an opt out, rather than an opt in and based upon that and other factors, the judge denied the settlement.  All documents can be seen here at The Public Index.

I covered this extensively in 2009.

The suit has continued with the Authors Guild getting approval for class certification and on July 27, 2012, both parties filed motions for summary judgment. A motion for summary judgment is when you say to the court that there are no “material” facts in dispute and therefore the only question that remains is one of law and you want the Judge to decide the questions of law now. In any case there are questions of fact and questions of law. A question of fact is whether the light was red or green. A question of law is whether a person is negligent automatically if the light was red and you drove through it. Questions of fact are for the fact finder to decide. The fact finder can be a jury or can be the judge (in the case of a bench trial). Questions of law are for the judge to decide.

Most of the time, there is no testimony or taking of evidence. You file three documents: The motion, a statement of undisputed facts, and the brief (or memorandum of law) in support of the motion.

On the Authors’ Guild side, they are arguing that Google engaged in creating unauthorized copies. This is undisputed. Google did create copies of books without attempting to obtain permission from the copyright holders. Many of the books they have scanned are in contravention to the copyright. Google has responded by saying that yes, it engaged in unauthorized copying but their actions are fair use.

Fair use is a defense to copyright infringement and requires the judge to balance several factors.

Purpose and Character of the Use.

The Authors Guild argues that the traditional fair use defense is applied when portions of one copyrighted work are used in a new work.  Google’s copying of entire texts, however, can never fall within fair use defense is the essential argument of the Authors Guild.  In support of its argument that Google’s search index of books is not transformative, Authors Guild cites Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) as standing for the proposition that verbatim copying is simply not permissible. (Most scholars and courts cite Harper & Row for the “heart of the matter doctrine” in which small reproduction of material can be infringing if it goes to the heart of the matter).   Instead, Authors Guild argues that a transformative work must be “a different work created that … had a substantially different purpose and character from the original copyrighted work.”

Google counters that the snippet views are not much more than a card catalog or paper index and thus does not supersede the original.  “Books are meant to be read” says Google.  The search results do not replace actual reading of the books.  Google argues that the full text search offers uses not previously available.

Authors Guild argues that Perfect 10 case is different because Google was indexing items already on the internet rather than taking items and scanning them in and creating a new digital copy.  (As an aside, this is the most nonsensical argument of the AG’s brief which I found to be weak in general. It’s akin to the argument that if it is on the internet, you can copy it.)  Moreover, to the extent that Perfect 10 cannot be distinguishable from the present case, Authors Guild argues that the decision cannot be reconciled with the existing standards set forth by the Second Circuit. In other words, Perfect 10 is decided by a different court who decided it wrong.

The most persuasive case law that Authors’ Guild referenced was the Video Pipeline v. Buena Vista Home Entertainment, (3d Cir. 2003).  Video Pipeline created two minute trailers and streamed them over the internet.  The trailers were used by home retailers to sell or rent movies.  The Third Circuit found in favor of the movie companies in that the trailers were verbatim copying that included no original creative work and reduced the potential marketability for licensed trailers.

Nature of the Copyrighted Work

This is acknowledged by both parties to essentially be a non important factor so I’m going to skip it.  “Some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164.   Google has engaged in the copying of both fiction (afforded greater protection) and non fiction and while most of the texts scanned are non fiction, it is unlikely that this will be a turning point for the judge.

Amount and Substantiality of the Work Copied

This is an interesting debate.  Google has copied the entirety of the work but only publishes snippets of the text in response to a search.  Google points out that a search index cannot be helpful unless the entire text is searchable.

Authors Guild argues that Google has engaged in, essentially, piracy of books by providing a digital copy to library partners. Google counters that libraries are allowed to have copies for preservation and haven’t used the copy for impermissible purposes.

Authors Guild takes exception to amount of words shown to users.  One search they conducted resulted in 37 snippets shown for a total of 1900 words verbatim.  (Authors Guild actually bolds this).  Authors Guild also asserts that only 10% of the book’s text is blacklisted and therefore, nearly all of the text can be obtained by a user. In its documents, Google argues that only short snippets, about an eight of a page long, are displayed and that there are security measures in place that prevent a user from recovering the text of an entire page, let alone an entire book.

In some cases, Google has permission to show up to 20% of a book and in other cases, books like the Black’s Law Dictionary are excluded from snippet view.  The three snippet preview is standard for books that are not part of the Partner Program and are not excluded.

Authors Guild also argues that Google shows the heart of the books by displaying text that is responsive to a users key word search.

Effect on Potential Market or Value

This final factor “must take [into] account not only … harm to the original but also … harm to the market for derivative works.”  Authors Guild says that it could license works in snippet fashion but just has never gotten around to it; however, should Google be allowed to scan and display snippets without permission, licensing text for search would be a derivative market totally ruined.  This argument reads to me thusly: we sat on our asses and never though that there would be ways we could monetize our works but Google created a market for it and now we want the money that such a market could create.

Google argues that browsing actually increases the market for books. The most damaging testimony for the Authors Guild is that it encourages all of its members to make their first chapter freely available on the internet because  “allowing a book to be browsed in this way promotes the sale of the book.” Gratz Decl. Ex. 2, Aiken Dep. Tr. 176:1-8, 13-24.1.  Google points out that Authors Guild has not provided any evidence that the Book Search has reduced even one book sale.

In regards to the licensing argument, Google states that there is no market for “tiny book snippets” and points to the fact that 45,000 publishers have agreed to allow Google to display snippets in much larger amounts than what is shown for non Partners.  A large number of publishers and authors have agreed to participate in Amazon’s “Search Inside the Book” for no additional compensation.  And, of course, Authors’ Guild urges its members to make its first chapter freely available on the internet.  Whatever market the Authors Guild dreams of existing for licensing of book snippets doesn’t exist, argues Google.

Public Benefit

Authors Guild essentially ignores any public benefit argument, but Google, EFF and Library organizations all speak to the importance and value the Google Book Search project has for the public.  I’d love to see public benefit play an important role in these arguments, but I’m not raising my hopes.

Summary

Google has better lawyers however, the Second Circuit is very pro copyright holder. In another circuit, I may have given Google the edge, but in the Second Circuit, I think the Authors Guild is speaking to a friendly court.  Both parties will the have the opportunity to file responses to the other and those should be filed shortly.

Dear Author

Thursday Midday Links: Mass market paperback sales decline 41.5% in February

At RT, there were dozens of workshops about self publishing. I sat on a panel myself with HP Mallory and Mark Coker. HP Mallory has sold over 130,000 copies of her self published books and has scored a 6 figure deal with Random House for publication of three forthcoming titles. As I sat next to Mallory on the self publishing panel, I could tell immediately why she was successful. Mallory knows how to market her books and spoke in terms that I hadn’t heard any one else speak about marketing in a long, long time. During the panel, someone told her that they wanted to buy her marketing book. I think she is going to write one. In any event, there were many authors who attended these self publishing panels. Authors who are routinely on the bestseller lists and authors who haven’t been published. Part of the reason is due to this:

According to AAP's monthly sales estimates, e-book sales jumped 202.3% at the 16 publishers that reported results, hitting $90.3 million. The rest of the trade segments, however, all had declines in the month with adult hardcover sales plunging 43%, to $46.2 million at the 17 houses that reported figures, while mass market paperback sales tumbled 41.5%, to $29.3 million at the nine reporting houses.

Romance, if you recall, makes up about 50% of those mass market sales. Jennifer Crusie has thrown her advice hat into the ring. She doesn’t believe self publishing can be done without professional help.   She also dislikes the terms “Big 6″ and “legacy publishers”.   I wonder what she thinks of “Agency Publishers”.   I actually agree with a lot of what Crusie says in that how you publish establishes who you are as a professional.   Self publishing is hard, particularly if it is done right.   Yet, when Crusie ends with the summary you “really need both print and e-publishing” she does something that is actually pretty misleading.   She conflates self publishing and digital publishing into one basket.   I’ve seen this time and again.   Digital publishing is going to be the norm in the future and print will not be.   Don’t conflate self publishing and digital publishing. They aren’t the same.

*****

New Yorker has a long story about the conflict between George R.R. Martin and his most ardent supporters.   Basically ardent supporters have turned bitter due to the long wait for the conclusion of the Fire and Ice series.   Laura Miller describes the readers as consumers who are impatient with the delivery of their product and perhaps not as respectful of the author’s creative process.   Some readers regret even reading the series given the tortuous wait.   Martin worries about not delivering.

It’s not that I don’t feel for the author.   Probably Martin is trying to write as much as he can when the creative muse strikes him.   But readers aren’t the patient sort and I don’t think that authors should expect that.   Impatience works in their favor.   Look, for example, at the success of the Jean Auel’s The Land of Painted Caves which has been hotly anticipated since 2002.   Impatient readers are a mark of a successful book and really, something to be celebrated rather than despised (not that I think Martin despises his readers).

*****

Courtney Milan points out how much the Google Book Settlement could have cost authors taking into consideration the most favored nations pricing require by Amazon.

But the terms that are most damaging to authors are buried after the royalty rate. Those are the terms that allow Google to set any price it wants, so long as it pays you the royalty on the List Price you have set internally. Yes, you can set your price to any price point. But Google has the right to discount off the price that you set.

Why is that worrying? Because in order to get Amazon's 70% revenue, you have to let Amazon match prices online. So if Google had rights to your backlist titles, and you put your books up on Amazon, and Google lowered your price (as it was allowed to do), Amazon could match that price lowering. And if Google lowered its price below $2.99, Amazon would match- and you'd get bumped from the 70% royalty to the 35% royalty.

*****

Publishers Lunch is reporting that several of Borders’ executives have resigned (reg req’d or Det News link) while Borders asks for millions of dollars to be paid in bonuses to the executives who have stayed.   No one likes the idea of the executives making so much money trying to bail out a company.   The argument for executive bonuses is that these execs are necessary to pull the company out of bankruptcy and that the executives are taking on an extraordinarily difficult task that has a lot of personal risk for them (i.e., if the company doesn’t make it, they are out of a job).   The argument against bonuses is that this money should be used to finance the reorganization, not line the pockets of the already wealthy.   I think Borders’ chances of getting out of bankruptcy is slim at this point.