Appeals Court In Google Book Scanning Case Clearly Leaning Towards Fair Use Ruling

from the does-not-bode-well-for-the-authors-guild dept

We've discussed for years how the Author's Guild has a very anti-technology, anti-innovation view on the world, and how their positions seem to really be more about representing the interests of big publishers rather than authors. And nowhere is that more clear than in the long-running lawsuit against Google for its book scanning efforts. The guild has already lost a similar lawsuit, against the Hathitrust (a consortium of university libraries) where a court found the scanning (which was done by Google) to be fair use. But the separate lawsuit about Google's own scanning has continued.

The parties were back in court on Wednesday, supposedly to discuss the appeal of the lower court's ruling on whether or not the Authors Guild can make this into a class action for all authors. Google had argued that it shouldn't be a class action, since the different issues (and defenses) concerning different authors would be entirely different -- and many authors actually support Google's book scanning project, so it would be weird to include them in the lawsuit. However, the district court disagreed, and said that it's fine to do it as a class action lawsuit.

Oddly, however, the three judge panel seemed less interested in that question than in the key question in the case: whether or not the book scanning was fair use. And, while it may be jumping the gun a bit, they certainly suggested that they think the scanning is likely to be considered fair use.

Judge Barrington Parker mentioned that he thought the book scanning effort "has enormous value for our culture" and that "there is a rather strong argument about the value of this project" and, finally, that the project has "enormous societal benefit." Those are not the words of someone about to kill off the project. Also on the panel was Judge Pierre Leval, one of the foremost scholars on fair use, and the author of one of the most frequently cited articles on fair use. He apparently quizzed the Author's Guild lawyer about why seeing a tiny snippet on Google Books would hurt an author. Leval also noted the similarities to another key fair use case, the one filed against Google by Perfect 10, concerning image search. There, the court found that thumbnail images were fair use. Leval noted the similarities here.

There was also this exchange, as written up by Jeff Roberts at PaidContent:
The court drew a laugh when it asked the Guild’s lawyer, Robert LaRocca, if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google’s choosing.

The judges also asked LaRocca to the explain why some authors were supporting Google’s position; he described them as “a very, very vocal group out at Berkeley.”
That's incredibly condescending and ridiculous to authors across the country who have realized that having a giant digital index that helps people find books is actually a good thing.

Once again, we're seeing the Authors Guild take an anti-progress, anti-technology position, probably costing their own members a huge sum in legal fees. It really makes you wonder who would want to support such an organization.


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    Ninja (profile), May 9th, 2013 @ 4:22am

    Judge Barrington Parker mentioned that he thought the book scanning effort "has enormous value for our culture" and that "there is a rather strong argument about the value of this project" and, finally, that the project has "enormous societal benefit."

    This would apply to public libraries. Imagine if we had a hige library with all possible titles that could be accessed from anywhere. Oh wait...

     

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    gnudist, May 9th, 2013 @ 4:42am

    Corrextion

    Should say "publisher's guild" since as techdirt itself has pointed out the guild views run counter to that of authors

     

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      bob, May 9th, 2013 @ 7:52am

      Re: Corrextion

      Wrongo! Most authors who want to make money selling their books have exactly the same interests as the publishers. The business models do a good job of aligning these interests. If the publishers sell books, then the authors make money. It's very simple. Most authors aren't rich.

      This claim is really only focused on the people who want to give away their books to make money in some other way. Think of tenured law professors who get consulting money from Big Search. They're the ones who don't feel the same needs as the publishers.

       

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        Anonymous Coward, May 9th, 2013 @ 8:12am

        Re: Re: Corrextion

        I don't understand. I'm going to describe an scenario and you can explain how Big Search is the villain.

        Dave is an author. Dave as you say is quite poor, possibly due to signing a bad deal with a publisher or possibly because he's a bit of an obscure author because he writes about his character Jim the crime solving mollusk.

        Google indexes his books, now whenever someone types "Jim the mollusk" into Google tidbits of Dave's novels come up. Google also helpfully points these people who seem to like mollusks to legal (ie Dave gets paid) versions of Jim's escapades.

        Where is the problem?

        The only, singular, issue I can see is that Google needs to have a license for each book that it's indexing.

         

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        Anonymous Coward, May 9th, 2013 @ 9:59am

        Re: Re: Corrextion

        "All author's that don't back the author's guild here must be in the pocket of Big Search."

        What a piece of work you are bob.

         

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        Anonymous Coward, May 9th, 2013 @ 10:29am

        Re: Re: Corrextion

        Do you sell tickets to your alternate reality?

         

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    Anonymous Coward, May 9th, 2013 @ 5:02am

    and the difference in the views here compared to those of the entertainment industries are almost the same. 'do anything and everything we possibly can to stop the very people we rely on to survive from getting their grubby little paws on any of our stuff unless we say it's ok and we are being paid a small fortune multiple times!!'

     

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  • This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, May 9th, 2013 @ 5:31am

    Can't be "fair use": a mega-corporation is not the public.

    This is a corporation monetizing what it hasn't produced; it's NOT about serving the public.

    That's a basic principle which every person should cling to because if we allow corporations to just take over all of what's now the public realm -- the "privatizing" that "libertarians" advocate -- then in future, it's CERTAIN that corporations will OWN those areas entirely and operate as MONOPOLY merged with gov't. For instance, corporations are right now getting control of water.

    Do you really think that corporations are any more moral than the Prenda lawyers Mike just wrote about using courts for outright extortion with presumption of trust? Mike wrote that Prenda got so far because no one could believe they were evil. Similarly, why should we just assume giant corporations can be trusted? What's going to stop them from going too far? Reason? Government? Inherent niceness? Humanity? -- No, corporations will happily throw you into sausage machines once it's made "legal" and that's the last cent they can get out of you.

     

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      Anonymous Coward, May 9th, 2013 @ 5:43am

      Re: Can't be "fair use": a mega-corporation is not the public.

       

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      Anonymous Coward, May 9th, 2013 @ 5:56am

      Re: Can't be "fair use": a mega-corporation is not the public.

      Newsflash: Copyright grants monopoly powers.

      You harp about how evil corporations and their monopolies are, but you are still defending what is, essentially, a monopoly power.

      (We can split hairs about how "this" monopoly is different from "that" monopoly, but that won't change the underlying reality.)

       

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        Anonymous Coward, May 9th, 2013 @ 7:33am

        Re: Re: Can't be "fair use": a mega-corporation is not the public.

        A "monopoly" gives sole control to one person or group.
        This is just the opposite, giving access to all, boy.

         

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      DannyB (profile), May 9th, 2013 @ 6:02am

      Re: Can't be "fair use": a mega-corporation is not the public.

      Google allows you and your copyright loving buddies at Prenda to have your works removed from this hugely valuable index of enormous social value.

      May your copyright works never be indexed and may they rot in obscurity.

       

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      Anonymous Coward, May 9th, 2013 @ 6:10am

      Re: Can't be "fair use": a mega-corporation is not the public.

      A corporation with the mantra "Do no evil" and stands pretty well by that is far more moral than Pretenda law.

       

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        RonKaminsky (profile), May 9th, 2013 @ 1:30pm

        "Don't be evil", not "Do no evil"

        The guy who supposedly proposed the "Don't be evil" motto was an engineer, who, in my opinion, meant it to include a good wallop of pragmatism and humor.

        Calling it "Do no evil" totally misrepresents the elegance of the actual phrase...

         

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      cpt kangarooski, May 9th, 2013 @ 6:10am

      Re: Can't be "fair use": a mega-corporation is not the public.

      Can't be "fair use": a mega-corporation is not the public.

      This is a corporation monetizing what it hasn't produced; it's NOT about serving the public.


      Being 'the public,' whatever that means in this context, is not a requirement for fair use. Serving the public is not a requirement for fair use. Making money from a work it hasn't produced does not prevent this from being a fair use.

      Since you seem utterly and woefully uninformed about fair use, here's the relevant bits of the fair use statute at 17 USC 107:

      [T]he fair use of a copyrighted work, ... is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
      (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      (2) the nature of the copyrighted work;
      (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      (4) the effect of the use upon the potential market for or value of the copyrighted work.
      The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


      And in any event, if Google succeeds in this matter, it will merely establish a precedent that others can use. It can't possibly take control of the world of books against all rivals. The worst it can do is to be so comprehensive that any competitor is deterred simply by the expense that would be required to compete. That's a natural monopoly, but it isn't yet certain that that will happen; if it does happen, it may not be bad; if it is bad, that's not the end of the world, for it can be regulated by the government.

      Plus, you could always follow the example of Aaron Swartz and make a copy of the database in order to run your own or facilitate the establishment of other competitors. It might violate Google's terms of use, but they don't get a copyright over what they scan, so at least it wouldn't be infringement.

      Anyway, nice to see you not even pretending to have a legal argument.

       

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      Dingledangle the Swung, May 9th, 2013 @ 7:29am

      Re: Can't be "fair use": a mega-corporation is not the public.

      You're confusing monetisation and privatisation.

      Privatisation implies ownership, and ownership essentially requires the exclusion of others - see copyright.

      Monetisation is making money from a product irrespective of ownership - typically via added value e.g. product delivery, ease of access, etc.

       

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      Anonymous Coward, May 9th, 2013 @ 5:23pm

      Re: Can't be "fair use": a mega-corporation is not the public.

      Would you like to know one reason why people are always laughing at you? Because you haven't figured out some very simple things, yet. 'Monetizing what it hasn't produced' described just about every retailer in the world. The vast majority of retailers sell other peoples' product for a profit. That's how a retail business works. That's how most businesses work, actually. Go down to your local B. Dalton, and all those books on the shelves? They didn't write them! OMG! They're profiting off the work of others!

       

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    anonymouse, May 9th, 2013 @ 6:42am

    The Future

    I see a future where all books are accessible from one site, where all books can be downloaded in any format and read on any device.
    I also see a future where every movie ever created is available in a few formats where anyone can go onto such a site and type in the name or description of a movie and be able to download it immediately.

    And on both sites they will have all content that is free to use and fair pricing for everything else. £10 per month to download movies/books will encourage these sites to be used a lot and generate a hell of a lot of income.

    And both of these sites must have no DRM, not even a small amount of DRM. Everything must be free to use on any device you have with no problems if a server goes down, i.e downloaded to your device not streaming alone.


    Once something like this is set up i am more than sure people will flood to it and use it instead of piracy.

    The problem is that this would remove the ability for copyright maximalists to steal money from the creators and they will fight that with everything they have, until Congress stands up and declares that torrenting is legal in the US and anywhere else for that matter.

     

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      bob, May 9th, 2013 @ 7:49am

      Re: The Future

      I see a future where no one will write books unless they have some other way to monetize it. That means, for instance, Defense contractors will write the histories of the wars because they want the histories to show what great guys they are.

      If the readers don't pay for the creation of the books directly, someone else will and that someone else will call the tune.

       

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        Anonymous Coward, May 9th, 2013 @ 8:33am

        Re: Re: The Future

        This is about monetising books. The main problem for authors is not piracy but obscurity Google is trying to help them. The tech savvy ones realise this but the luddites in charge of the "Authors Guild" don't have a clue and are using authors money to fight against authors becoming known.

         

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        cpt kangarooski, May 9th, 2013 @ 8:34am

        Re: Re: The Future

        If the readers don't pay for the creation of the books directly, someone else will and that someone else will call the tune.

        Luckily, Google Book Search doesn't prevent readers from buying books (which is actually an indirect process, btw), nor does it divert money from book sales away from copyright holders and their associates.

        I suppose that being able to search for books relevant to a topic, and being able to preview a snippet to see could help cause unpopular books to fail in the marketplace, but it just as easily could assist obscure books in becoming popular, and in any event, it is more or less like a review, which despite the effects it can have on the value of a copyright, is clearly fair use.

        So no need for you to worry just yet, Nostradamus.

         

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        Anonymous Coward, May 9th, 2013 @ 9:50am

        Re: Re: The Future

        I'm marking this 'funny' because it's just that ludicrous.

         

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        Anonymous Coward, May 9th, 2013 @ 10:30am

        Re: Re: The Future

        I see a future where we laugh at you. This future occurs in approximately 4 seconds.

         

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        Anonymous Coward, May 9th, 2013 @ 12:20pm

        Re: Re: The Future

        Bob this site belonging to an author, and have a good look around.

         

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    BentFranklin (profile), May 9th, 2013 @ 7:36am

    Next up on the Authors Guild hit list: library card catalogs.

     

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    Mason Wheeler (profile), May 9th, 2013 @ 10:16am

    A very vocal group of guys from Berkeley?

    I wonder if this Author's Guild representative has ever heard of Brandon Sanderson.

    In between writing and publishing some highly innovative novels that have made him one of the biggest names in modern Fantasy, and finishing up The Wheel of Time after Robert Jordan's death, Brandon teaches writing at BYU, which I don't think anyone would equate with Berkeley on the political spectrum.

    He pushes strongly for digital innovation in books, personally making sure that all of his novels are available electronically and in audio-book formats as soon as possible, preferably at the same time as the print launch. (Though he's been known to get some push-back from Harriet, Robert Jordan's editor, on the The Wheel of Time books. Apparently she's a bit of a Luddite, unfortunately.) In fact, when a friend of mine found out I was going to meet him at a book-signing tour, she asked me to specifically thank him for his efforts in this, because she's blind and it's pretty much the only way she can enjoy literature.

    He also published one of his novels online as a free download under a Creative Commons license. This didn't stop the paper version from selling plenty of copies.

    Doesn't sound like Mr. LaRocca speaks for him...

     

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    uRspqF7L (profile), May 9th, 2013 @ 1:15pm

    few things

    there are few things more pleasurable than reading this site full of people who make money off their creative labor telling the rest of us what would be good for us. oh, wait. i mean, this site which promotes the stealing of our work as if we should allow it because it's good for us.

    it's wonderfully hilarious to call Google "A corporation with the mantra "Do no evil" and stands pretty well by it." Not only do I think that is not the experience of so small an entity as the EU with Google, where Google consistently tries to avoid and overstep not just laws but agreements to which it has been a willing an explicit party, but I think this case itself shows it.

    Because if you go back to the beginning, Google's project to scan every book they could get their hands on was not limited to showing snippets--that itself was an accommodation made over the long history of litigation, with the Author's Guild playing an important role. Unlike the library cards and other examples of metadata folks here mention, Google wants to keep the entire text on its servers, and if you don't think they will try every angle, legal and quasi-legal, to monetize those texts *without* paying their creators (of course, this site has no sympathy for creators anyway, but only for the sadly-victimized Google, not a mega-corporation like the publishers who publish authors), has simply not been paying attention.

    As long as I'm here, "copyright monopoly" has nothing to do with REAL monopoly. A real monopoly refers to a single company dominating an industry so that it can set prices and therefore put other companies out of business and gouge the public for profits to itself. The government "monopoly" on copyright does not entail profits going to the government, but rather to copyright holders--frankly it's a terrible use of the word "monopoly" and we'd be better off dropping it, as it is not a monopoly in the ordinary sense of that term. AT&T had a monopoly over telephone COMMERCE and prevented other businesses from being a part of that COMMERCE. The government's issuance of copyright prevents others from issuing copyrights, but does not prevent copyright holders from doing commerce as they see fit--that's why there are literally millions of people and corporations who earn money off the copyrights they hold.

     

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