I suspect a fair number of people are really struggling with the proposed settlement between Google and the Author’s Guild over the wholesale scanning of more than 10 million copyrighted works. At the heart of the settlement is a compromise that would allow authors to financially benefit from the sale of their works as a result of the Google index. This would in turn allow Google to provide an index to these works that would be searchable using the google search engine.
The original thesis that permitted, according to Google, an “opt out” system for scanning and indexing these books was that Google’s use was a “fair use” as that phrase is defined within U.S. copyright law. See 15 U.S.C. § 107. Libraries, for example, acquire and make paper books available to the general reading public for loan. Academics and journalists are specifically identified as “fair users” of the copyrighted works of others within the statute; these kinds of uses are recognized by federal law as having general utility that should be encouraged, in spite of the monopoly otherwise enjoyed by authors of works. Google probably does not fit within any of the specifically mentioned groups. Google is a very large, international, for-profit company that provides web search and related web services to internet users.
And, as has been spelled out in a number of federal cases on fair use, exploiting the works of another protected by copyright for profit and without paying the “customary fee” to the author almost always spells “not fair use.” In this case, Google has reproduced wholesale into digital form the works of others without paying them any compensation. Google’s activities are presumably part of its mission as a for profit entity. One would anticipate that Google would be able to expand its AdWords presence to searches that turn up digital copies of the works that it scanned, and that Google could therefore gain a profit from these ads, without necessarily compensating the owner of the work whose content helped Google in getting its ad revenue. Not fair use if we are all reading the same statute.
Nor is the phrase “opt out” found anywhere in the statute on fair use. A copyright owner is not required to “opt out” of an infringer’s database in order to protect or reserve his rights in restricting how the work is reproduced or duplicated. Implementing such an opt out system does not necessarily make the subsequent use a “fair use” under the Copyright Act. For Google, I’m presuming that they would have argued that there were other overriding policy objectives that supported their project of scanning and indexing all of these books and placing them into the hands of internet searchers. Perhaps chief among these is that Google was simply creating version 2.0 of the local public library, bringing more content to the more than one billion internet users that might be looking for an otherwise unretrievable work. We actually pay (through taxes, at least for public libraries) the use that our brick and mortar libraries make of copyrighted works, why not tolerate a better library that its users by and large do not pay for (except by tolerating the ads that appear unctuously alongside search results)?
From a technical perspective, Google is absolutely right about its search engine as compared to the typical card catalog at the local library. Google wins hands down. When you consider that the majority of these books are out of print and hard to come by (about 3-4 million books are in print at any one time in the world), the settlement proposed would put back into “print” of a sort a whole lot of books that are otherwise hard to find unless you go to some “old school” library and use their card catalog. Google’s index, however, improves the library card catalog, because the card catalogs are generally useful if you are already aware of the work, or the work happens to be cross-indexed in a meaningful way in relation to how you are searching the catalog. Most catalogs in libraries are not full text indexes of the individual works in the library, so a google index would represent a huge leap forward for finding material online.
However, the legal argument (to the extent one has been made – Google entered into settlement negotiations promptly with the plaintiff such that Google has not had to file much in response to the Complaint) appears a little wanting. Financially, most authors will probably be satisfied with the relatively small settlement amount per book, and the potential share of revenue for actual book sales through the Google service. But the problem with the settlement for some is that they can get a better financial deal than Google is going to offer them. Hopefully these authors will simply opt out of it to allow those authors that want to participate the option to do so. But I think there is trouble ahead for this group of authors in the longer term as a consequence of what Google has been doing with its indexing.
This project poses a larger question that is aimed at the fundamental structure of what the Copyright Act protects in intellectual property: how authors can actually get paid for writing works in light of the free availability of huge amounts of information on the internet. In years past, it was much easier to control access to information published in books, which provided a way to get paid via book sales. I’m sure more popular books were plagiarized and reproduced without authorization of the publisher, but mass reproductions of a popular book would generally cost real money, which would limit the number of persons willing to engage in such wholesale theft. Generally, in a paper world, authors had a way to generate revenue from book sales and royalties that was protected by the Copyright Act.
The internet has altered the level of accessibility to information. Post 9/11, many U.S. government agencies and larger private companies began slimming down the amount of information available online (I guess posting our nuclear launch codes on the interweb was not so smart!) that was posted as part of transparent governance and the culture of openness encouraged by the internet. However, in spite of a more security-conscious culture, the overall internet’s content continues to grow. The information available in the written works of the world’s authors, especially highly searchable content from these works, would add substantially to the value and utility of the internet. But can authors make a living if the information in their works is free? Will authors continue to write works as a “hobby” and will this reduce the extent and value of works written in the future? Can new works be written that are supported by advertising (e.g., Google Adwords on blogs)?
The “free” value of things available on the internet is challenging many of us to make a living in a new way. And I think as a result, authors may need to seriously reconsider how they will survive as well. To a certain extent, those that sit down to write a book must have (or develop through writing) some expertise in the subject matter for the book to have utility (not always true, but more often than not there is a correlation between authorship and subject matter expertise). Our economy is benefitted by the high availability of specialists and experts that can help us beyond what we might self-educate ourselves about via internet research. So there is value to the economy as a whole to the extent that authorship encourages the development of expertise.
The works created through this process also have intrinsic value to the economy to the extent that they are available for public consumption. I certainly learned a fair amount about virtualization, for example, by reading white papers and other freely available articles online. However, in spite of my self-education online, I would not have been comfortable implementing virtualization in a production environment without help. Our project was benefitted greatly by the wisdom and experience of a technology professional that implemented these systems on a regular basis. Perhaps this is how authors can make a living – by reselling their expertise in their field to more educated internet users that found the author through a Google book search. But for those of you counting on royalty payments to make a living until 70 years after your death, I think Google is going to put you out on the street looking for a job!
Here are some links to several CNET stories that discuss the details of the proposed Google settlement.
Faith At Law LLC 