Authors Guild Argues That Google Books Should Be Infringing Because Aaron Swartz

from the wait,-what?!? dept

The saga of the Authors Guild v. Google Books continues to make its way through the courts. This has been going on for years and years, and we don’t need to rehash all of the background, other than a few of the more recent situations. Last year, the case went to the 2nd Circuit appeals court, supposedly to discuss the Authors Guild’s desire to make its case into a class action lawsuit. However, the appeals court judges basically ignored that issue, and said it was meaningless since it seemed pretty clear that Google Books was fair use. Thus, it sent the case back to the lower court asking it to determine if Google Books is fair use. The argument is that, if it’s fair use, whether or not it’s a class action is moot. The lower court dutifully declared Google Books fair use a year ago.

Now the case is back before the appeals court as the Authors Guild is insisting loudly that it’s not fair use. Thankfully, the judges appear to be very, very skeptical. Perhaps this isn’t a surprise, since they were the ones who last year were so focused on the fair use point. It seems clear that Judge Pierre Leval — known for his support of fair use — wasn’t very interested in the Authors Guild bringing up false arguments that because Google makes money, Google Books can’t be fair use:

In his argument Wednesday, attorney Paul Smith quickly sought to differentiate the Guild?s case against Google from its unsuccessful HathiTrust case, citing Google?s commercial nature. But almost immediately, Judge Pierre Leval shut him down, telling Smith he would not succeed by arguing that Google?s commercial nature precluded fair use. Smith, however, pressed on, arguing that Google?s scanning deprived authors of a potential market to license books for search. Again, Leval pushed back, noting the transformative nature of the use is what mattered, not whether somebody might potentially pay to make that use.

Another summary, from Courthouse News, notes that Leval compared Google to the NY Times:

Leval warned that Smith “would lose” the case if his argument was premised on the fact that “Google, like The New York Times, is a profit-motivated enterprise.”

It makes no difference that, unlike Google, the Times stands to gain “dwindling, small profits” as opposed to Google’s billions, he added.

Leval also, thankfully, was pretty clear in rejecting the idea that just because publishers could find someone to license a work it means everything needs to be licensed:

Smith argued that Google’s business model prevented authors from licensing their books to companies like Microsoft, which he said was creating a licensed database before Google Books arrived.

“The test is not how transformative is the use,” Smith said. “The test is this the type of use that would be licensed.”

Strongly disagreeing with that point, Leval said. “You’d always find someone who would be willing to pay [a licensing fee] to avoid a lawsuit.”

However, the craziest argument of all came from the Authors Guild’s lawyers in which they tried to point to Aaron Swartz as a reason why Google Books shouldn’t be fair use. The argument here is a bit convoluted: Google points out that it only shows snippets, not large swaths of scanned text. The Authors Guild then counters that maybe, just maybe, some enterprising hacker might figure out how to break into the backend and release all the text… because Aaron Swartz:

Google Books avoids copyright violations by only allowing users to read portions of books that match their searches, but the Authors Guild raised the possibility of hacker disseminating the digitized books in full.

Waxman emphasized that this has never happened in the history of Google Books.

In rebuttal, Smith said that he mentioned this concern in light of “an MIT student” distributing academic articles from a university database because he believed, “Information should be free.”

This is clearly a reference to Swartz, but it’s wrong in all sorts of ways (including that Swartz was never an MIT student). Swartz also never “distributed” those academic articles. He merely downloaded them. It’s unclear if he actually intended to distribute them or not. He also didn’t hack the system. He had full access to the articles he was downloading. And he didn’t do it because “information should be free.” As we’ve noted, that phrase tends to be a bogus strawman that copyright system supporters toss up to mock anyone who is in favor of fixing copyright law’s problems.

No matter what, it clearly has no relevance whatsoever to the case at hand and whether or not book scanning to create a searchable index is fair use. The Authors Guild has been flailing about wildly for a while, and dredging up Aaron Swartz just seems to show how ridiculously desperate it’s become.

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Comments on “Authors Guild Argues That Google Books Should Be Infringing Because Aaron Swartz”

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Just Another Anonymous Troll says:

Piracy is inevitable

If you create something, it will soon extend in ways you do not control. This is a question of when, not if. If someone really and truly wants to get your work without paying for it, they will. The best way to protect your intellectual property is not to share it.
If you have to start making up semi-plausible scenarios as to why X needs to not exist because it might result in piracy, you’ve already lost the argument, regardless of what Aaron Swartz did.

orbitalinsertion (profile) says:

Re: Piracy is inevitable

If you create something, it will soon extend in ways you do not control. This is a question of when, not if. If someone really and truly wants to get your work without paying for it, they will.

Libraries! Quelle horreur! All those people you dreamed about reading your work actually might do so.

Now if the AG had the slightest clue, they’d realize that a thing like Google Books snippets might get them referenced, talked about, or that people would see an interesting bit and want to buy their book online instead of dragging their overworked asses to a library. Oh, but no, they’ll just wait around forever until someone “hacks” into a Goog server and shares the file (and they happen to search and find a valid download option). Newsflash: people who will do that, and can’t make it to a library? They aren’t going to be buying your book anyway.

Mike Masnick (profile) says:

Re: Re:

Aaron Schwartz’ stated intention was to release the public domain documents, so I don’t know how you can say otherwise.

No, he never said what he intended to do with the JSTOR docs. He had talked about freeing up other docs. It’s a jump to assume he was definitely doing the same here. There was some belief that he wanted the JSTOR docs for a research project he was doing.

And there’s another key difference. Aaron Schwartz was releasing PUBLIC DOMAIN documents, not copyrighted ones.

That’s also not clear. After he died someone else released just public domain docs. But, again, Swartz never said one way or the other his intentions.

Anonymous Coward says:

Re: Re:

That’s the problem with the word “hack”…

He clearly circumvented detection using legal mechanisms, but he didn’t actually crack the system to access anything that was otherwise illegal to access.

Hacking is not technically a bad thing – it’s usually a creative and skillful process to do something which was otherwise tricky or difficult to accomplish.

Mason Wheeler (profile) says:

Re: Re: Re:

That definition was dropped from the lexicon decades ago. What it means today is “computer crime.”

Fresh out of high school, my first job, as it is for many people that age, was working in fast food. We had this one repeat customer who would frequently come in and act in disruptive ways. Finally the store manager got fed up and told her in no uncertain terms to leave the store and not come back, and if she did he would call the police.

The restaurant was open to the public, but it was still within our rights to revoke access to specific people for specific reasons. She never did come back, but you’d better believe that if she had come back, and the manager had called the police, they’d have arrested her and charged her with trespassing!

When Aaron Swartz’s access was revoked, it doesn’t matter what would have been legal for anyone else to do. He was given a lawful order by the owner of the system to leave and not come back, and therefore, any further access on his part constituted hacking–computer crime. It really is that simple.

John Fenderson (profile) says:

Re: Re: Re: Re:

“What it means today is “computer crime.”

Only to the general public (thanks a lot, popular media). Within the industry, “hacking” and “computer crime” are not synonymous.

“any further access on his part constituted hacking–computer crime. It really is that simple.”

It’s not that simple at all. Simply accessing a system that you are not authorized to access is not “hacking,” it’s “unauthorized use of a computer system” — essentially, trespassing. To count as “hacking” would require, at a minimum, that the intruder subverted an access control system. I guess spoofing the MAC address satisfies that requirement, but it’s still a stretch to me to call such a common thing to do “hacking”.

Anonymous Coward says:

Re: Re: Re:2 Re:

More to the point is the difference between “hacking” MIT’s network and JSTOR itself. Yes, MIT’s network granted him access to JSTOR, but he could just as easily have been looking at internet porn on the same connection. It doesn’t mean he would have “hacked” porn sites by directing his browser to their URLs while using the MIT network.

Ultimately, if the Author’s Guild wanted to bitch about the Swartz scenario, they should have complained that anyone on MIT’s network automatically got access to JSTOR without being required to log in and verify their identity.

To which, Google’s lawyers would point out that they don’t allow that kind of access to their database so that vulnerability doesn’t exist.

Mason Wheeler (profile) says:

Re: Re: Re:2 Re:

It’s not that simple at all. Simply accessing a system that you are not authorized to access is not “hacking,” it’s “unauthorized use of a computer system” — essentially, trespassing.

I fail to see how the distinction you’re apparently trying to draw exists in any objective fashion, if any form of technical control to revoke/obstruct your access has been put in place.

jackn says:

Re: Re: Re:3 Re:

Yes, you do fail to see.

How about walking up to someone else’s unlocked, logged in and powered-up computer. You simply open IE and navigate to techdirt.

Shit is easy to be hacker these days.

Keep learning Mason, you’ll get there if you work on your critical thinking and removing any biases you appear to have.

John Fenderson (profile) says:

Re: Re:

“Regardless of the larger issues, that constitutes a hack.”

That’s debatable. You’re referring to two distinct things: the use of the laptop in the network closet (which in no way can be considered a hack, unless your definition of “hack” encompasses plugging a network cable in) and the MAC spoofing (which, I suppose, could be considered a “hack”, although only barely).

The MAC spoofing, however, was not hacking JSTOR, nor was it doing anything remotely malicious to MIT’s network. To use Swartz as an example of the risks to Google Books is downright silly.

Anonymous Coward says:

Re: Switching from WiFi to wired gets you a new MAC address, but that's not spoofing.

Spoofing is when you deliberately edit a setting to make your computer’s network interface report a customized MAC address rather than the one that was assigned by the interface’s manufacturer.

When he hooked up his laptop to the switch in the closet, Swartz merely got on the network with a wired connection instead of the wireless one he was using before. This typically results in a completely different MAC address because a laptop’s LAN and WiFi adapters are separate pieces of hardware from different manufacturers. He didn’t have to go in and change any settings at all, or at least the Feds didn’t present any evidence that he did.

We don’t know whether he was aware of MAC address issues at all. Occam’s Razor says he was simply experimenting with a different type of connection to see if the ban on his traffic was limited to WiFi, and to continue downloading if possible. There’s no reason to blindly accept the Fed’s line that there was spoofing. Not that spoofing is a crime.

Anonymouse says:

“but the Authors Guild raised the possibility of hacker disseminating the digitized books in full.”

You said you preparing to do what Google has done earlier, and mentioned Microsoft still later as a potential Licensee. You think Microsoft has better security than Google? You think YOU have better security than Google? I am sure Sony thought the same, how’d that work out for them?

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