Google wins appeal
It’s been almost two years since I last wrote about legal challenges to Google’s book scanning activities…and I started writing about it more than four years before that.
What’s changed in those two years?
Not much…and that’s important.
According to this
and other sources, the 2nd U.S. Circuit Court of Appeals has upheld Judge Denny Chin’s decision that the way Google is scanning and distributing books falls under Fair Use, meaning that it does not infringe on the rightsholders’ rights.
Here is the actual
rendered today, October 16th, in the Authors Guild vs. Google, Inc.
Here’s the sum up:
“The Court of Appeals concludes that the defendant’s copying is transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), does not offer the public a meaningful substitute for matter protected by the plaintiffs’ copyrights, and satisfies § 107’s test for fair use.”
This short excerpt, however is where I at least emotionally am in a different place than the court:
“Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”
It brings up the basic dichotomy.
We use the term “copyright protection”, and that’s how I think of it…as protection for the authors’ intellectual property from unfair exploitation.
The other side of it is that copyright law is intended to benefit the public…and that could be at the expense of the individual.
How does enabling an author to get compensation help the public?
It does it by encouraging the creation of more works.
It also, very specifically, sets a limited time for the author to benefit from that work…and then it becomes owned by the public (it becomes part of the “public domain”).
Now, I am a reader and a writer, so I think to some extent I can see both sides.
Do I take advantage of the public domain and Fair Use?
I love being able to read free public domain “classics” for free.
I play within the rules. I like rules. I used to manage a gamestore, and rules are what make games fun.
That doesn’t mean, though, that I wouldn’t be interested in having the rules change.
More than five years ago, I wrote one of the posts that got me the most pushback:
It explores the idea that copyright should be permanent, in exchange for more Fair Use.
Over this half decade, I’ve started to like the idea more.
Schools would be able to use current, copyrighted works for educational purposes without paying for them.
A hundred years from now, though, the movie of The Martian could still generate money for a rightsholder.
One immediate response to that people make: it would be a corporation making the money, not the author or the author’s descendants, in most cases.
That assumes the older model: the creator sells the rights to a publisher/distributor.
That may be less true over time with authors independently publishing, and keeping those rights for their descendants.
Regardless, my feeling is that the public doesn’t have an inherent right to a “shared culture” without recompense.
It just doesn’t feel right to me that eventually, Shakespeare belongs to everybody.
I’m sure many of my readers will disagree with that, and that’s fine with me.
I’m not saying I’m right and other people are wrong…I’m just trying to communicate how I feel about it.
It’s also important to note that this decision doesn’t say that Google can copy authors’ books and distribute them in full without the authors’ permission.
It does say they can copy them…even give a digital copy to a library.
They seem to be arguing that it is distributionright, not copyright. 🙂
They (it’s a three judge panel, with the decision written by Judge Pierre N. Leval) make it clear that a profit motive is not a barrier to Fair Use.
That’s also something that should be said unequivocally. When you see Saturday Night Live doing a parody, they are certainly doing it with a profit motive. That doesn’t mean that they aren’t also driven by a creative impulse, but there is nothing wrong with making a profit off Fair Use.
Could the Authors Guild appeal this to the Supreme Court?
Sure…they promote themselves as an advocatory agency, and one place advocation happens is in court. Fighting in court helps demonstrate their worth to their members.
My guess is that this won’t be the last time I write about this. 🙂
So, what does this mean for you?
It means you can search using Google Books and see a “snippet” of a book under copyright protection without the author’s permission.
It may also increase the likelihood that books survive, because the digital copies Google makes and gives to libraries (the specific library that loaned them the book) is something the library might not have been able to do. Google uses special technology, and can put a lot of money into it.
I want books to survive, of course…but for me, I would rather have a book disappear forever than have it made available to the public against the author’s wishes.
Ooh, it hurts to say that…practically (and selfishly, as a reader), that sounds bad, but for me, ethically, it feels right.
I’m very interesting in hearing what you think. I have intelligent, compassionate readers who may be able to argue for the other side very effectively. Ideally, that’s what I want for my readers…to hear multiple viewpoints ably presented.
Feel free to tell me an my readers what you think by commenting on this post.
Update: thanks to reader Barbara Barry, whose comment helped improve this post.
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