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19 Apr 2014
I used to say to our audiences: "It is difficult to get a man to understand something when his salary depends on his not understanding it!"
- Upton Sinclair, I, Candidate for Governor: And how I Got Licked, (1935), p. 109
In November, the Authors Guild suffered a crushing defeat in their long running suit against Google's book scanning project, with a broad decision agreeing with Google that the scans are protected by fair use. Not surprisingly, they're making a last ditch appeal to the Second Circuit. While I see no realistic chance of them winning, not least because Judge Chin who wrote that decision is now a well respected member of the court to which they are appealing, it's always interesting to see how they think they'll get the court to reverse. Having read their brief, all I can say is, it's really strange.
The Guild apparently thinks it's big news that Amazon was Google's target when they set up the book search, since the Guild sent me a press release with that as the headline. The brief starts by recounting events from 2003, when Amazon set up their "search inside the book" program, which scans books in their catalog and lets you look through them, vaguely like Google's snippet view, although of course at Amazon you're never more than one click away from the Buy button. They then say that Google started their book search project mere months after Amazon did, which I think is correct. But it's presented as though it's a smoking gun. Huh? It certainly suggests to me that Google knew a good idea when they saw one. Perhaps the Guild is arguing that it was a nefarious trick to put Amazon out of the e-book business, in which case it failed pretty spectacularly. Amazon's A9 search engine, which runs search inside the book, was a failure as a general purpose search, but is still running Amazon's web site product search and other specialized searches. If anyone had a case about A9, it'd be Amazon, not the Guild. But I digress.
They then go on to argue that mass digitization is illegal because, well, just because. Then they make some strong assertions about fair use law which to my non-lawyer eye, seem wildly at variance with the actual law, such as claiming that the judge had to look at each use (snippets, copies returned to libraries, etc.) separately, and that the fact that their use is so commercial means it can't possibly be fair use. They throw in unsupported claims about the "actual and potential harm to the literary market" which must come as news to Amazon, Lulu, Smashwords, and all the other e-book vendors.
They claim that the scans aren't fair use because Google could make an index without the scans, presumably by scanning each page, extracting the words and phrases, and then throwing the scans away. (If they want to change the phrase selection or reindex later, too bad, I guess.) That's as absurd as it sounds, and the case law agrees.
Skipping ahead a little, they continue to argue that the project is hopelessly commercial and gives Google a stranglehold on the book search market, supported with a quote from an old Yahoo brief taken totally out of context. The quote was from an objection to the now abandoned settlement, which would have given Google a de facto monopoly on selling e-book copies of out of print books. That's irrelevant to the current situation with their scanned books which in principle at least, anyone else with sufficient resources and determination could also do themselves.
Then they argue that Collective Management Organizations (CMOs) like they have in Europe would pay authors more, which I can personally report is true, since I get about £100 each year from UK and European CMOs, which I spend on beer when I'm in England. But it's also totally irrelevant, since the US does not have CMOs, and only Congress, not a court, could create them.
Then they hammer on their favorite hobby horse, the security risk, managing at the same time to be both stupid and insulting. The claim is that data breaches are inevitable, and Evil Hackers will steal the scans and thereby destroy what remains of the book market, with a few experts opining on how awful the threat is, and a few quotes of disclaimer boilerplate from Google's annual report about "security measures may be breached due to the actions of outside parties, employee error, malfeasance, or otherwise, ...," presumably to impress naïfs who aren't aware that every public company's report has the same boilerplate, a ritual intended to ward off shareholder lawsuits. The Guild's claim is insulting, since Google has some of the most sophisticated security and cryptography people on the planet working for them, and in the decade the scanning project has been going on, there's never been a whiff of unauthorized leakage. And it's stupid, because if Google's store of e-books presents an unacceptable risk, so does every other, such as the one kept by their pals at Amazon. Indeed, Amazon's is a much worse risk since they have current e-books that sell for $10 or $20, while most of the Google scans are dusty old books that you might pay $1 for at a used book sale.
And then, the pièce de résistance, they show us how the snippets give away the "heart" of a book. Google's snippet view excludes cookbooks, dictionaries, and other references where a small chunk might be all someone was looking for. But for the Guild, that's nowhere near enough. As an example, they show a snippet from lead plaintiff Jim Bouton's 1970 best seller Ball Four, which I quote from the brief (attention copyright lawyers, this quote is for the purposes of criticism, comment, and news reporting):
Steve Hovley has been called up. Old Tennis Ball Head hasn't had a haircut since he left. Which means Joe Schultz had four comments to him the very first day. "Where's your barber?" "Don't you need a haircut?"
Moments later, perhaps feeling bad about his comment, or perhaps wishing to stick the needle in further, Pattin approaches Hovley and says, "I don't care you long you wear your hair, Hovley. You can wear it down to your ass as far as I'm concerned."
I happen to have a copy of the 400 page hardback edition of the book, and, uh, that ain't the heart. It's barely a capillary.
So they reiterate all this, and conclude the Second Circuit must to reverse and tell the district court to pay the authors, stop giving the e-books to the original libraries and protect the books from the risk of theft and dissemination (their word) presumably by destroying all the scans. Wow.
The Authors Guild has always proudly claimed Upton Sinclair as one of their members. I can see why.
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