February 10, 2016
Leading authors take Google Books copyright appeal to Supreme Court
by Zeljka Marosevic
Last week, we wrote about ‘Books at Play’, Google’s new project with experimental publisher Visual Editions to create digital reading experiences in the form of “books that cannot be printed.”
But Google’s actually been running a bigger, more sophisticated publishing project since 2005: digitizing millions of books and making them available for free online—without permission from the copyright holders: authors. These aren’t “books that cannot be printed,” these are books that have been printed, and don’t belong to Google.
The tech giant has courted a decade of controversy for its actions, and much of it has played out in the courts. In 2013, a judge in New York, Denny Chin, sided with Google and told the authors that had brought the case forward that Google Books was not only legal, but provided “significant public benefits.” If anything, it would increase book sales. In Chin’s words, “Indeed, all society benefits.”
A few people still don’t agree. They’re named JM Coetzee, Yann Martel, Margaret Atwood, Ursula K Le Guin, Malcolm Gladwell, Peter Carey, and a handful of other world-famous authors you might know.
As Alison Flood writes for The Guardian, an appeal by the Authors Guild against the original ruling was rejected by the U.S. Court of Appeals for the Second Circuit in 2015. So now the Guild is taking its case all the way to the top, and is requesting the Supreme Court makes its own ruling. Leading American authors are fronting the campaign.
As Flood notes, the authors are strongly challenging claims that Google is working on behalf of authors and for the benefit of the public. As they set out in their filing:
Although Google described its Books Library Project to the public as though it were a charitable endeavor … it was a vehicle to make searchable digital copies of over 20 million authors’ works (four million in copyright) available for searching…Paying for licences for those copies was not part of Google’s business model.
In other words, Google isn’t only in breach of copyright law (and shouting ‘Fair Use!’ whenever challenged), it has based its business model—i.e. its expansion and profitability—on the assumption that it shouldn’t have to pay the creators of the content its using. What’s more:
By creating a search project that would draw people repeatedly to new searches, as one consults a dictionary, Google created a vehicle for creating new, advertising-bearing web pages that would enrich its advertising revenue.
Ergo, Google saves money and makes money at the same time. You can see why its spent a decade trying to defend itself. As the authors’ state, this behavior goes against the founding principles of copyright protection:
Copyright protection was included in the constitution to reward authors and provide incentives for them to continue writing…[not] to permit a wealthy for-profit entity to digitise millions of works and to cut off authors’ licensing of their reproduction, distribution, and public display rights.
The new appeal is backed by publishers, including Hachette and numerous copyright agencies. Mary Rasenberger, executive director of the Authors Guild, believes the case has reached a crucial moment, proving “that this matter is critical to the future of fair use under copyright law—if not the future of publishing and authorship itself”.
The Supreme Court will decide whether or not to hear the case in the spring. Until then, Google will be continuing its project of hosting books that cannot be printed, as well as books that really should not be printed.
Zeljka Marosevic is the managing director of Melville House UK.