Dispatches from the Digital Revolution
Last week I wrote a lengthy summary of Google’s recent motion for summary judgment in the case of The Authors Guild, et al. v. Google Inc. The motion explained—in great detail—the ways in which Google Books falls within fair use; mainly, the Defendant argues that the Google Books index is transformative and that the scanning of a book in its entirety is necessary to provide full-text search.
The Authors Guild has a thing or 118 to say about all that. In its own motion for summary judgment, filed on the same day as Google’s but partially released to the public on August 6, the Plaintiffs attempt to disprove Google’s claims with a 22-page statement of its own undisputed facts.
Funny how the Authors Guild’s and Google’s “undisputed facts” seldom agree. Here are some of the more important conflicting notions.
The Authors Guild has a vastly different interpretation of the service Google provides to participating libraries of the Google Library Project, particularly when it comes to distribution. This is an important component of the lawsuit because the Authors Guild argues that in providing a scanned, digital copy of a library’s book to the library Google has violated the exclusive right of copyright holders, granted in § 106(3), “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” In its motion, Google contends that it is the actions of the library—not Google’s—that result in the digital duplication of a book; Google merely provides the technology necessary to do so. Furthermore, Google doesn’t make the copies available to the public, only the library that owns the book anyway.
But according to the Plaintiffs, “Google itself explained that after the library requests a copy of a particular book that Google has scanned, Google provides its digital copy by placing the file of the book on a server that the requesting library can access to download the file over the Internet.” Additionally, Google’s agreements with libraries note that “‘Google and the University share a mutual interest in making information available to the public.'”
Later the Plaintiffs begin to attack what they deem Google’s philanthropic facade. In internal documents collected from Google, statements such as “‘[w]e want web searchers interested in book content to come to Google not Amazon’; ‘[e]verything else is secondary…but make money,'” and “Google’s purpose is to ‘[g]ain a competitive advantage,'” do appear to counter Google’s mission to make the world’s information accessible to all.
The document goes on to demonstrate the commerciality of the book project by detailing the investment Google made in the scanning operations, as well as the company’s efforts to protect those investments. In a deposition from the engineering director of Google Books, Daniel Clancy, it became known that “Google invested at least $180 million in its books scanning operations alone, and that this amount does not include the salary and other expenses associated with the Google Book team of over twenty people.” Furthermore, Google restricted the use of each digital public domain book by the library partners for the express purpose of preventing “‘third parties that might be building an equivalent service'” from “‘obtain[ing] the documents directly from us.'”
The Plaintiffs further dispute Google’s argument that its full-text search service is a transformative one, thereby rendering it “fair,” because “an ‘index’ of books’ metadata already exists.” The index referred to is the library MARC record. MARC records are electronic card catalog entries that contain metadata information “such as author, title, [and] publishing information.” If a MARC record and a Google full-text scan serve the same purpose, then Google’s contention that scanning allows for a revolutionary, transformative use seems to lose a lot of its weight.
Contrary to Google’s argument that there is no book licensing market to be infringed upon by giving the information away for free, the Plaintiffs point to such collective management organizations as the Copyright Clearance Center (CCC), which currently licenses “‘essentially printed content, much of the same nature as the material scanned by Google,'” and the ASCAP, BMI, and SESAC, which “license the use of music.” Allowing Google’s book scanning to continue without forcing it to first obtain copyright holder permission would destroy the existing market for content licensing, essentially creating a free-for-all effect. Most importantly, a fair use finding would hurt authors. Agreements between authors and the CCC yielded $171 million for authors in 2011—and that’s only for print. If Google’s scanning isn’t found to be fair, it’s likely that a similar market will develop for the digital licensing of books.
In Google’s Summary of Undisputed Facts section, we’re told that a high priority is given to maintaining the security of each digital book from unauthorized copying. Displaying book snippets as images instead of selectable text, as well as “blacklisting” at least 10 percent of each book from full-text search prevents users from ever illegally copying a Google book in its entirety. But the Authors Guild found a statement in Google’s 2011 Form 10-K (an annual performance report required by the United States Securities and Exchange Commission of all publicly traded companies) that doesn’t sound as sure:
Because of the techniques used to obtain unauthorized access, disable or degrade service, or sabotage systems change frequently and often are not recognized until launched against a target, we may be unable to anticipate these techniques or to implement adequate preventative measures.
If Google admits that it may not be able to handle all types of security breaches, how could a smaller, less technically equipped company do so? They couldn’t, the Plaintiffs allege, which speaks to the enormity of the impact a fair use finding would have on the integrity of copyright. “If Google’s bulk and indiscriminate copying is found to be ‘fair,’ other website operators, no matter how small, will also be given sanction to create online databases of books and other works…[and] these website operators may have insufficient security to prevent widespread piracy of such works.” Licensing the use of a work, however, would allow copyright holders and their agents to require that Google or any other licensee secure each text from unauthorized copying.