Authors Guild council member Richard Russo weighs in on Authors Guild v. Google and the redistribution of wealth from the creative sector to the tech sector.
Google vs Authors
by Richard Russo
When I was a kid, disputes over ownership of found objects were resolved by “calling it.” It worked as follows: Two kids are walking down the street and there on the sidewalk is a dollar bill. Seeing it, one bends over to pick it up. The other, spying the bill at almost the same moment, cries, “I call it.” So, who is the rightful owner? You might imagine that the kid who has the dollar in his fist would just put it in his pocket and blow his friend a raspberry, but among youngsters of a certain age, who have not yet heard that possession is nine-tenths of the law, “calling it” is a powerful construct and often the kid who actually has the dollar will make a face, sigh, and hand it over, as if to say, Well, the law’s the law. There’s an innocent, Tom Sawyer-ish quaintness to the practice, which addresses some rudimentary, real world issues of growing up. “Calling it” prevents the biggest, fastest, oldest kids from reaping all of serendipity’s rewards by giving smaller, weaker ones a chance. The innocence of the ritual, as well as its irony, resides in the fact that the person with the best claim on the dollar, the one who dropped it, is never considered at all.
The same issues of ownership and fair play are at the heart of The Authors Guild’s lawsuit against internet giant Google, which has, without permission from authors and without paying for their copyrighted material, digitized millions of their books while ignoring, as if these were irrelevant, their creators’ claims to ownership. Google has justified this theft by arguing that the use they were making of our property was “transformative,” a public service. They wouldn’t be selling our books for profit, just providing a research tool that displays only snippets, which would fall under the doctrine of “fair use.” More information would be available to more people. Ignoring the original theft, the courts have so far agreed.
To authors, whose incomes are in decline both here and abroad, Google’s intentions and the use to which they put our books are beside the point. They saw something that didn’t belong to them and took it. Why? Because they could. To us, they’re like those cartoon seagulls in Disney’s “Finding Nemo.” Always on the lookout for scraps, they have a one-word vocabulary: Mine, mine, mine. Ownership has no meaning outside of their insatiable hunger. What they desire is just lying there out in the open, ripe and unguarded. It’s simply not in their natures to consider whether what they covet might actually belong to somebody else.
So that’s it? Really? In 2016, you can just call it? You can say mine, and the thing becomes yours? Post-digital revolution, you can dodge the whole issue of ownership by focusing the discussion on your intentions? Convince people that your planned use for somebody else’s property justifies its seizure? To authors, that’s not a terribly compelling argument. What if similar logic were applied to other types of property? Imagine if “use” and “intention” were trump when it came to, say, houses. I live in Maine where lots of rich people from out of state have second homes. Ten, twelve bedroom mansions, many of them vacant eleven months of the year. Surely we can come up with a better use for these properties in a country where so many people are homeless. If nobody’s in said house, let’s just “call it.” Say Mine! and when the owners get wind of what you’ve done, just explain your altruistic plan to provide shelter to people who have none. Surely they’ll understand that your interest is the common good. Or take cars. No, really, I mean it: take cars. Just take them. Some people, despite working at home, have very nice ones just sitting in their garages, while other less fortunate folks have none and no way to get to their minimum wage jobs thirty miles away. How fair is that? Solution? You see a car that isn’t being used, just give voice to your inner seagull and screech Mine! If the owner objects, just explain that when you hot-wired his Audi it was not a self-serving act.
Ironically, writers are not immune to the common good argument. We have longstanding relationships with public libraries that are not in our own financial interest but are in the interests of the democracy. Poor people should have access to books and magazines. If others who can afford to buy our books but choose not to because they can be borrowed for free, well, we can live with that. I’ve never met a writer who begrudges either libraries or the population they serve. That said, in many European countries when someone checks out a library book, the author gets a penny or two. These pennies don’t make that author rich but they do symbolize a cultural pact, a shared belief that writers and other artists enrich our collective lives and that artists, like dentists, shouldn’t be expected to work for free. For the typical author who makes under twenty thousand bucks a year from her writing, these pennies add up to real money. Google, a staggeringly rich company, could easily afford to pay authors modest fees for the property they’ve seized. But why would they when they can just call it, when U.S. courts allow them to?
Nor should Google’s avowed altruism go unchallenged. Their use of our intellectual property enhances both the quality and value of their search engine, which in turn gives them an advantage over competitors. It’s completely disingenuous for them to argue that their behavior is selfless when it leads directly to an improved bottom line and increases their value as a corporation. When libraries loan books, the democracy benefits, not the library. Google may be larger than many public institutions and wealthier than some nations, but that doesn’t mean they are acting in the public interest simply because they claim to be and can demonstrate some benefit to the public sector.
That the courts have seen things Google’s way to this point shouldn’t be surprising. There’s a revolving door between their mother ship and the justice department. According to The Guardian Google, through its campaign contributions, has also infiltrated the House Judiciary Committee, which oversees intellectual property law. Indeed, according to Consumer Watchdog’s John Simpson, “they’re masters at [wielding influence], and it works very, very well for them.” In this dispute it’s not just authors who stand to lose, but all creators, because what’s really at issue is who gets to share in the benefits of the digital revolution. What we’re witnessing, across the spectrum of the arts, is the redistribution of wealth from the creative sector to the tech sector. Technological disruptions cause us to re-evaluate our notions of worth, of the value of both the made thing and its maker. Many things that are valuable before the revolution are judged to be of less value after it, while other stuff that was of little importance becomes dear. There are a lot of “scraps” lying around and a lot of seagulls anxious to claim them. It’s possible that in the future those of us who make things will be worth less than those who deliver them. Time will tell. But whether something is worth a little or a lot is a separate issue from who owns it, and you can’t just skip ownership as if it no longer pertains. These books with my name on the cover? I wrote them. I’ve even had some people tell me they’re transformative. Sure, I’ve entered into a contractual relationship with my publisher, who sells them for me, but they’re still mine.
What would I and my fellow authors have done if Google had come to us, respecting our ownership of what we’d created, and asked our permission? I guess we’ll never know, because they didn’t feel the need.