A New Fight for the New Year?
By Minda Zetlin | From the January 2014 Issue
By now you probably know that Thursday, November 14, 2013 was a black day for writers everywhere. It’s the day Judge Denny Chin issued his decision in the Authors Guild lawsuit against Google for scanning more than 30 million books without the authors’ permission.
The lawsuit had been going for nearly a decade and just about everyone, from librarians to advocates for the blind, from academicians to the Justice Department, has weighed in at one time or another. But the decision, to be appealed, follows a flawed logic. Scanning a book makes it searchable. According to Judge Chin and Google, that change alone is “transformative” and therefore a legal fair use. But the idea that a “transformative” work doesn’t violate copyright was intended for uses that really turn item A into item B. The popularly cited example is Shakespeare transforming the myth of Pyramus and Thisbe into Romeo and Juliet, and Arthur Laurents, in turn, transforming Romeo and Juliet into West Side Story. That’s very different from turning words on a page into exactly the same words in digital form.
The giant leap to the idea that scanning is itself transformation was first made in 2012, when Judge Harold Baer used it to decide against the Authors Guild in its lawsuit against HathiTrust (a consortium of libraries that allowed Google to scan their books). That case is on appeal, but Judge Chin decided to take Judge Baer’s decision as precedent anyway.
I suspect, in their heart of hearts, these judges wanted to find for Google. Not because they hate writers or love Google, but because they love the utopian vision Sergey Brin spun in his New York Times op-ed of “A Library to Last Forever.” Here’s how Judge Chin sees Google’s book scanning:
It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.
Who wouldn’t want to support a project that does so much to make the world a better place—and even helps writers find new audiences? What grinches we are for objecting to something so wonderful!
Underlying the whole fight, Google’s defense, and both decisions is the battle between two opposing ideas:
1. Everyone benefits when all information, including books, is freely and equally available to all.
2. Writers and other creators have the right decide what happens to the works they create.
Idea Number 1 has undeniable appeal and, as Judge Chin notes, benefits everyone in society. Blind people, economically underprivileged and Third World readers suddenly have access to exponentially more books.
By comparison, Idea Number 2 benefits a relatively narrow group of people who create written (or visual or audio) works, especially the even smaller subset who make our living this way. That’s one reason Idea Number 2 has taken a heckuva beating lately. I routinely get emails that say some variation of, “You don’t mind if I lift your whole article for my very worthwhile website, do you?” One correspondent recently asked if he could do so for marketing purposes. “Probably,” I wrote back, “What do you have in mind?” He never responded, which makes me wonder if he simply decided to skip negotiating with the pesky writer and do whatever he wanted. Life is so much simpler that way.
Some writers I know have tried to argue that treating authors fairly is a societal good because if we see that our work can be stolen willy-nilly we may simply stop writing books, and then there will be no new works for Google to scan or for anyone to read. But that notion is pretty hard to sell. The world isn’t running out of books in a hurry, and most people who’ve taken up this profession have a hard time imagining not doing it. I know I can’t.
It’s easy to feel helpless in the face of judicial decisions like these, but we aren’t. Originally, Google and the Authors Guild planned to settle on terms that would have given Google full rights to do whatever it wanted with our books for a tiny fee. ASJA, along with the Science Fiction Writers and a large cohort of creators’ groups and even governments from around the world, prevented that from happening. Instead, Google has relied on the fact that it changed its plans and now only displays “snippets” of books for legal protection. It takes pains to make sure that the entire text of a book could not be captured, or at least not without many, many hours of work. In the early days of Google Book Search, I was able to obtain an entire chapter from a veterinary dermatology book (I have a cat with a rare skin disease). That kind of thing can’t happen anymore. If Google has free rein to keep on scanning our books, at least we’ve prevented it from doing what it wants with those scans.
Where do we go from here? The war isn’t over yet. The Authors Guild has said it will appeal the decision, and ASJA and other groups will be here to support that effort. Indeed, by the time you read this, that appeal may already be filed. It may work its way up through several appeals courts and if it does we’ll be there at every stage. Other writers or writers groups may also sue Google. Perhaps most importantly, we can all go back to the source—the federal government. A complete overhaul of copyright law is long overdue, and that has to happen in Congress, not the courts. Giving creators some control over what happens to their work is the principle on which the Copyright Act of 1790 was built, and it’s one every subsequent law has tried to respect, even if federal judges don’t.
Meantime what can individual writers do? Talk about this decision and how wrong it is. Blog about it, tweet, and post about it.
Maybe society appears to benefit if large corporations are allowed to steal writers’ work. Maybe writers who lose all rights over their own work will keep on writing anyway. But that doesn’t change the fact that what Google is doing is wrong, whatever the courts decide.
All of us need to keep saying so.
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