Have the Courts Given Google a License to Steal From Authors?

If I were to scan Kristin Hannah’s The Nightingale, post 16% of it on my website to attract visitors, and then sell advertising at prices justified by the number of visitors, I would be infringing on Hannah’s copyright. I could (and probably should) be sued for hundreds of thousands of dollars.

But when Google does the same thing with millions of books, it is not infringing. Instead, Google is applauded for expanding “public knowledge and understanding.” Is this legal?

This is one of the key questions behind the case commonly known as Authors Guild v Google.

Background

In 2005, Authors Guild and others sued Google claiming that Google’s digitizing of millions of books to build a searchable database was copyright infringement on a massive scale. After a protracted battle, U.S. Circuit Judge Denny Chin found that the Google project was fair use and not infringement. Authors Guild appealed the ruling and lost. The Appeals Court affirmed the lower court decision of fair use and went on to say that the Google project provides a public service without violating intellectual property law. Authors Guild is now petitioning the Supreme Court to hear and review the case.

A few weeks ago, I was asked to represent the ‘voice of the author’ at a discussion of the case at the Northwestern Law School Journal of Technology and Intellectual Property Symposium. This gave me a reason to read the court opinions and petitions. The briefs range from the impassioned (Author’s Guild) to the arrogant (Google’s) and are worth a read for anyone interested in learning more.

But I came away from the whole experience with two distressing observations,

• The courts keep expanding the scope of fair use, and
• Writing, whether it is literature, scholarship or smut, has become a commodity to be monetized.

The Expansion of Fair Use

Fair use is any copying of copyrighted material (even verbatim) for a limited or “transformative” purpose, such as commentary, criticism, or parody. Fair use may be done without permission from the copyright owner and is not considered infringement.

Traditionally, courts considered four factors in deciding whether a use was fair use.

1. The purpose and character of the alleged fair use.
2. The nature of the original copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

And now there’s de facto fifth factor:

5. Is the work “transformative?”

Since the 1994 Supreme Court ruling in Campbell v. Acuff-Rose Music, courts also consider whether a use is “transformative.” Originally, transformative meant that the user added sufficient expressive content to the original so that the work appealed to a new audience or imparted a new message. The inquiry focused on additional expression and innovation.

However, the law is organic. It grows and evolves. It sprouts tangled tendrils and invasive branches in unintended and unexpected directions. Before long, courts began to consider whether a use was transformative not because it introduced new expression, but because it permitted the old work to be used in a new way. A work could be functionally transformative even if it were not expressively transformative.

Really?

No one thought digital readers were a transformative use. Publishers did not release ebooks by the millions claiming that digital delivery was so transformative they didn’t need permission from or to pay royalties to authors.

How about online file sharing? If you follow this reasoning, then wasn’t Napster’s use transformative? Didn’t it provide a new functional use for old content?

And what about live streaming or other new technologies coming down the road?

While this argument seems weak to me, courts embraced it. The Google fair use ruling is simply another step down a slippery slope.

Is There a Bias in Favor of Technology?

Face it, the Google mass digitization project is rather awesome. It involves:

• Physically handling and scanning tens of millions of books, many bound and in poor shape;
• Converting millions or perhaps billions of scanned pages into searchable text;
• Delineating snippets that match search queries; and
• Collecting data on what snippets are viewed and by whom.

A project of this size is expensive. Google funded it without taxpayer assistance, although many would argue that writers and publishers subsidized the project by losing out on licensing fees.

Judges tend to be middle-aged or older, and perhaps they were a bit wowed by the technological capacity and tenacity of one of the fastest growing companies in the world. Were they reluctant to impede a project that allows all of us to access the works of great scholars from our smartphones?

Are the Courts’ Counter-Balancing the Extension of the Copyright Term?

Over the last few decades, Congress has repeatedly extended the duration of a copyright so that now it runs for the author’s life plus seventy years. In some cases, copyrights last up to 120 years. These extensions were passed primarily at the behest of Disney and other holders of large portfolios of copyrighted work.

Are the courts consciously or unconsciously trying to balance the interests of copyright owners with the interest of the public in having access to expressive work? Perhaps. But have we created a system that protects large interests, such as Disney’s, at the expense of small interests such as academic authors whose copyrighted works are searchable on Google? After all, if researchers find what they need online for free, then there is less market for the sale of scholarly books.

Treating Literature as a Commodity

One of least favorite phrases is content creator.

Content is what settles in the cereal box after packaging. Or the lumpy stuffing in my dog’s bed or those pesky styrofoam forms you can’t recycle.

My writing is not content. Sometimes it’s brilliant and inspiring, others times it is rank and rough, but it’s something of value called intellectual property. Notions of fairness and rules of law have honored and protected intellectual property for centuries.

But to Google, literature is nothing but generic bits of data, useful only to draw users to their search engine and to sell ads.

Many people disagree with me. The Google ruling has been applauded as a win for the free and open sharing of knowledge. I will admit Google’s search engine has permitted me to research obscure topics without leaving my desk or shelling out money. But let’s consider the cost.

Everyone has read a book that has made them cry, or an essay that changed their thinking, or a poem that took their breath away. Stories connect us across centuries and continents. Good, insightful writing is hard, and making money from that writing is even harder. Copyright law provides a way for creators of these stories, essays, poems and art to enjoy some compensation for that hard work.

We have to ask whether a society is better off in the long run if it does not protect its creators.