Authors Malcolm Gladwell, J.M. Coetzee, Michael Pollan, Margaret Atwood, Peter Carey Support Lawsuit Against Google’s Theft of Books Through Digitization
New York, NY- Prize-winning authors, international rights organizations, and legal experts Monday joined the Authors Guild in fighting what they call Google’s dangerous and unprecedented violation of copyright law. They filed eight stinging friend-of-the-court briefs in support of the Guild’s appeal in Authors Guild v. Google, agreeing that Judge Denny Chin’s decision in the case should be overturned. The briefs can be viewed in their entirety at the end of this blog post.
“Google’s ambitions respected no borders,” said Authors Guild president Roxana Robinson. “Millions of copyrighted books by authors from every major country were swept in to Google’s scheme. As the new filings demonstrate, not just authors but also photographers, visual artists, songwriters, and publishers around the world find it particularly galling that a wealthy American company would try to find a way to use their creations for free.”
Authors from Australia, Canada, and South Africa joined one brief, including Margaret Atwood, Thomas Keneally, J.M. Coetzee, Yann Martell, Peter Carey and Michael Frayn. In a separate filing, an array of international rights organizations warned that if this massive expansion of “fair use” is allowed to stand it turns the United States into a rogue nation, in violation of international norms of copyright.
Copyright experts, including Marybeth Peters, Former U.S. Copyright Register, Jon Baumgarten, Former General Counsel, U.S. Copyright Office, and professor Raymond T. Nimmer, filed briefs as well.
American authors Malcolm Gladwell, Michael Pollan, Karen Russell, Ursula K. Le Guin, Ron Larson, Taylor Branch, Tracy Chevalier, Lawrence Hill, Diane McWhorter, Robert Christopherson and Tracy Kidder submitted a brief that highlights how Google has left little room for authors and publishers to develop partnerships and licensing opportunities of their own.
And fifteen U.S. groups, representing textbook authors, songwriters, visual artists, illustrators and photographers, filed briefs of their own. These organizations collectively represent thousands upon thousands of individuals dependent on copyright for their livelihoods. Their conclusion sums up the strong case against Google: “One group cannot simply be allowed to take from creators and give works to the public for free with impunity. This undermines the very purpose of copyright law and ultimately of fair use.”
The Authors Guild first sued Google in 2005, citing “massive copyright infringement” in developing its Google Book Search database. The Guild filed its brief on April 11, 2014 with the U.S. Court of Appeals for the Second Circuit Court in Manhattan.
Jan Constantine, General Counsel of the Authors Guild, is testifying before the House Judiciary Committee this afternoon on mass digitization of books and so-called orphan works. Those topics, of course, are at the heart of two Guild lawsuits, Authors Guild v. Google and Authors Guild v. HathiTrust. An advance copy of Jan’s written testimony is available below.
Here are three highlights:
Out of print books only
1. We’re proposing that Congress empower the creation of a collective licensing organization (something like ASCAP or BMI) to deal with both mass digitization and “orphan” books. Such an organization would pave the way for a true national digital library, but it would have to be limited in scope, just as ASCAP is.
Here are the key components:
A. Authors get paid for the uses, naturally.
B. Licenses would be non-compulsory. Authors get to say no.
C. Licenses would cover out-of-print books only. No disrupting commercial markets.
D. Display uses only. No ebooks or print books.
E. There would be a tribunal to go to if the licensing agency and an institution couldn’t agree on the fee.
Such agencies are already in place around the world, licensing limited photocopy uses of books. They all license orphan books as part of the package.
There are millions of out-of-print copyrighted books. Making these books available would have an enormous societal benefit and bring our nation’s great research libraries to computer screens at our smallest colleges and most remote rural libraries.
Guild says 1963 copyright hearing “eerily prescient” of Google’s book scanning project
2. A Copyright Office hearing on February 20, 1963, is eerily prescient about what was to come. (Irwin Karp, legendary and curmudgeonly counsel for the Authors Guild and Authors League was there.) It’s as if everyone saw Google and its mass digitization of books under the banner of fair use coming. Not only that, they addressed it in legislation – it was an early hearing for what became the 1976 Copyright Act.
UMI found “Orphan Row” authors decades ago
3. Fifty years ago, people knew how to find authors and other rights holders of books, they didn’t just declare out-of-print books to be “orphans”. UMI, Bell & Howell, and 3M raced to see which company could pre-clear the most books for the new print-on-demand technology. UMI boasted it would “go to Timbuktu” to clear rights.
And, get this: Remember “Orphan Row,” our term for the list of 100-plus books that HathiTrust was preparing to release in ebook form? UMI cleared the rights to seven of them decades ago, long before the Internet made searching for rights holders easy. It’s amazing what you can find when you really want to find it.
Here are some “snippets” from that 1963 hearing, followed by the list of Orphan Row books UMI had cleared rights for by the 1970s.
KAMINSTEIN (Copyright Register): I was going to hold this for later on, but I have a telegram from Reed Lawlor, who says, “I suggest you consider adding the following section 6: ‘In any event reproduction of a copyrighted work in machine readable form for use in the analysis, citation and reasonable quotation of the work by means of an information storage and retrieval system shall be considered a fair use.’.” We were going to hold this for the discussion of fair use, but I certainly have no objection to opening up the subject here. Did you want to comment on it?
When Scott Turow stopped by CBS This Morning last week to promote his new book, Identical, co-anchor Charlie Rose turned the discussion to Turow’s “beef with Amazon,” while Norah O’Donnell brought up his April New York Times piece on “The Slow Death of the American Author.”
Turow said Amazon’s below-cost ebook pricing, “destroys physical bookstores and drives the reading public into the ebook, which of course Amazon dominates. They’re a great competitor and I don’t mind fair operation of the market. I don’t like unfair tactics.”
Arguing that the Google Library Project violates authors’ rights to control the copying and distribution of their books, destroys a potential market for the works, and puts the material at greater risk of theft, the Authors Guild urges Judge Denny Chin to rule against Google in a court brief filed ahead of next Monday’s hearing on summary judgment.
While Google maintains that its mass unauthorized copying of books is “transformative,” and therefore protected as fair use, the Guild argues that merely digitizing a work doesn’t meet the legal standard of transformative.
The brief also says that a program as all-encompassing as the Library Project “eviscerates” any possibility that license holders could form a collective market for the works.
On the issue of security, the brief outlines the risks of Google making digitized books available without any accountability for keeping it safe. What’s worse, if such programs are considered fair use, “others will engage in their own unauthorized book digitization programs, putting more books within the reach of digital thieves,” the brief says.
The Guild rejects a number of Google’s justifications for the project, including the contention that it’s actually helping authors by increasing exposure to their books (the “we were only trying to help” defense) and that the program is “only indirectly commercial.” In fact, according to the brief, “the primary motivation for Google’s exploitation of the authors’ books is for Google to gain a competitive advantage in the online search marketplace” by increasing traffic and therefore ad revenue.
Recognizing that the “fair use doctrine is not designed to address the enormity of Google’s infringement,” the Guild argues that it’s up to Congress, not the courts, to revise copyright law to deal with technological advances. Earlier this year, the House Judiciary Committee said it would begin a review of U.S. copyright law. In the meantime, the brief says, “Google’s unilateral and profit-driven effort to upset the balance between copyright owners and users must be rejected.”
A federal shield law protecting journalists from overzealous government intrusion is one big step closer to becoming a reality today, after the Senate Judiciary Committee voted to approve the Free Flow of Information Act and send it on to the full Senate.
As defined in the act, the law would cover a wide range of information gatherers including nonfiction authors, bloggers, students and freelancers, regardless of whether they’re being paid for the work. In addition, a federal judge could rule that someone who doesn’t fit into any of the categories laid out in the law is covered. The committee broadened the definition of “covered persons” with an amendment approved today ahead of the vote on the full act.
That more inclusive definition makes this a double victory for free press advocates, who feared that the law as previously written would leave unprotected many journalists who work in non-traditional media.
The bipartisan legislation seeks to strike a balance between the First Amendment rights of journalists to not to reveal their sources and other private information and the need to protect the public from the dangers created by leaks of classified information.
While attempts at passing a federal shield law have failed in the past, most recently in 2009 with legislation similar to the act approved in committee today, momentum for putting the protection into place has been building since revelations earlier this year that the Justice Department secretly obtained the emails of a Fox News reporter and the phone records of Associated Press reporters.
Outrage over the revelations led Attorney General Eric Holder to issue new guidelines for obtaining journalists’ records while investigating leaks. But without the force of law, those guidelines could be changed at the whims of the current or future administrations. Legislators and First Amendment advocacy groups, including the Authors Guild, have been pushing for legislation that would expand on those guidelines and make them law.
Free press advocates are stepping up efforts to raise support for the Free Flow of Information Act, as the Senate Judiciary Committee prepares to consider the federal shield law legislation on Thursday.
“Journalists work hard every day to give life to the promise of the First Amendment. The ability to protect confidential sources is the oxygen that investigative reporting needs to survive,” a media coalition supporting the act writes in a letter sent to Judiciary Committee members Monday afternoon. The letter is signed by the Authors Guild, along with news companies, media trade groups and other First Amendment supporters.
Coalition leaders are also asking advocacy organizations to encourage their members to call senators who serve on the committee and urge passage of the legislation.
Interest in a federal shield law was reignited earlier this year after revelations that the Justice Department secretly obtained the emails of a Fox News reporter and the phone records of Associated Press reporters. Outrage over the revelations led Attorney General Eric Holder to issue new guidelines for obtaining journalists’ records while investigating leaks. The current legislation, based on a 2009 bill that made it through committee but failed to become law, would expand on and codify those new DOJ guidelines.
The Judiciary Committee began considering the bi-partisan legislation on Aug. 1, but postponed a vote until after the August recess. In its letter, the coalition urges the committee to support the bill and oppose any amendments that would weaken it.
Google’s scanning of books does not meet the legal definition of “transformative,” creates potential harm to authors and other copyright holders, and is not protected as fair use under the law, the Authors Guild argues in a brief filed this week in New York federal court.
“The only thing ‘transformative’ about Google’s display of snippets of in-print books is that it transforms online browsers of book retailers to online users of Google’s search engine. Google ‘transforms’ Amazon customers into Google ad-clickers,” according to the brief.
Whether Google’s mass digitization of copyrighted material qualifies as fair use is the central issue now facing the court in the long-running legal dispute between the search engine giant and the Guild. A decision on fair use issues will influence whether the case should proceed as a class action lawsuit.
In a brief also filed this week, Google maintains that its scanning of copyrighted material is transformative, and actually helps authors by making their books easier to find and benefits the public by rendering information more accessible.
The Guild rejects the characterization of Google’s library-scanning project as anything other than a commercial enterprise intended to give it an advantage over other search engines and increase ad revenue–all while putting authors’ valuable property at risk.
The Guild’s brief points out the threat of piracy created by Google’s online distribution of book content. “One need only pick up a daily newspaper to appreciate how serious this security risk is. Stories of break-ins, hacking and theft appear almost daily.”
The current focus on fair use resulted from an appeals court decision in July. The judge vacated a class certification ruling in The Authors Guild vs. Google, saying issues of fair use had to be decided before determining whether authors should be treated as a class in the case. If Google’s fair use defense requires a book-by-book analysis, then this would weigh against class certification. If a fair use ruling can be made more broadly, then judicial economy is more likely to weigh on the side of class certification.
As the court weighs the legal issues, it’s already clear that Google’s unauthorized scanning of books creates a hazard for every author.
The Department of Justice today asked Judge Denise Cote to force Apple to throw out its existing contracts with the five publisher defendants in its ebook price-fixing case and essentially impose a five-year ban on agency model terms.
“Apple shall not enter into or maintain any agreement with any E-book Publisher or supplier of any other form of content (e.g., music, other audio, movies, television shows, or apps where such agreement likely will increase, fix, or set the price at which other E-book Retailers or retailers of other forms of content can acquire or sell E-books or other forms of content,” according to the proposed injunction filed in U.S. District Court.
Under the proposal, Apple would also have to let other ebook retailers provide links to their ebookstores from their iOS apps, “allowing consumers who purchase and read e-books on their iPads and iPhones easily to compare Apple’s prices with those of its competitors.”
Apple’s compliance with the new rules would be overseen by a monitor. And the company would have to hire an internal Antitrust Compliance Officer, who “will be hired by and report directly and exclusively to the Audit Committee of Apple’s Board of Directors.”
We’ll have more on this story Monday.
Members of the Senate Judiciary Committee will wait until after August recess to vote on federal shield law legislation introduced last week. The committee met today to consider the Free Flow of Information Act, but ran out of time before holding a vote.
The Committee is scheduled to reconvene Sept. 12. In the meantime, senators will work to hash out amendments to the legislation. And First Amendment advocates, including the Authors Guild, will continue efforts to support the bill.
From Australia, which is considering a major change to copyright law, comes an eloquent defense of keeping intact a system that enables authors to get paid when schools and the Australian government uses other organizations use their work. Author Linda Jaivin saves her harshest criticism, however, for the proposed addition of a fair use exception to Australia’s copyright law.*
Jaivin, who writes novels and nonfiction books focusing on China, details what a proposed repeal of statutory licenses would mean for her and other authors.
“As a member of the rights management organisation Copyright Agency for many years, I have received payments ranging from a few dollars to nearly one thousand. Among those bodies who have copied my work are universities and the Attorney-General’s Department. The Australian Law Reform Commission’s proposed repeal of statutory licences, which provide this secondary income, will rob me of an important source of revenue…”
Jaivin then gets to the fair use proposal:
“[A]nd the proposed new ”fair use” exception, that would allow even businesses to use copyrighted content without permission, would mean a business could steal the product of years of work, profit from it and still have the gall to call this ”fair.”
If you are going to do this, please at least have the decency to call it by its correct name: ”theft.’”
To allow others to steal and/or profit from intellectual property that we have created is no different than saying it would be OK to smash your way into a designer’s atelier and grab whatever outfits you fancy.
The Commission’s proposal would replace statutory licenses for certain uses, including educational uses, with a system of “voluntary licensing arrangements” worked out by individual content owners (for more on how this would work, see this explanation from Australia’s Copyright Agency). Proponents say a more flexible system is better suited to the digital age. As Jaivin sees it:
“(The new system) will confront writers with the burden of tracking down copyright breaches and of finding the means to prosecute them under law. Few of us have the time, legal expertise or financial wherewithal to do so, so this effectively disempowers us even to pursue what legal rights we would have left.
The ALRC would put the onus of proof of the crime on the victim, which cannot be a good principle of law in any of its aspects.”
*Fair use is a defense to copyright developed by American courts to reconcile copyright protection with free expression. It’s rather vaguely defined and its application varies greatly from case-to-case. Many other countries, including Australia, recognize a similar but much more carefully enumerated exception to copyright known as fair dealing.