Author's Guild Didn't Want To 'Pull An RIAA' But Still Misses The Point
from the it's-a-bit-better dept
Last week, in discussing its attempt to settle its lawsuit with Google over the Google book scanning project, the Authors Guild posted a rather interesting public letter, entitled To RIAA or Not to RIAA, That was the Question. In defending the settlement, it notes that it could have fought the lawsuit to the end, but that it might have lost. In fact, this is why I supported the idea that Google should have fought on, because it seemed like Google had a strong fair use case — something the Authors Guild admits. Even though the Authors Guild says that it disagrees that the book scanning project was fair use, an awful lot of copyright legal scholars seemed to believe that it was, in fact, fair use.
But the more interesting point is that the Authors Guild noted that even if it did win the lawsuit, that could actually make things worse, and it pointed to the RIAA’s Pyrrhic victories over file sharing systems:
Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.
It didn’t work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn’t truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.
While I applaud the Authors Guild for recognizing that suing (and even winning) don’t help you innovate and can backfire massively in driving innovation underground, it does still feel like the Authors Guild got the wrong message out of this. Despite what it claims above, the “innovation among copyright [infringers]” did not really “abate” with the introduction of the iPod/iTunes. While the Authors Guild is correct that offering a legal solution is better than offering nothing or fighting innovation, it feels like it’s overestimating how much of the market transformation its facing is due to infringement vs. how much is due to economic forces that will occur even without infringement in the market.