Given the way information tends to distort at lighting speed these days—particularly through the filter of tech v copyright referenced in my last post—I’m not surprised to read articles like this one by Ellen Duffer writing for Forbes on a thesis proposing reasons why Google Books is “good for publishers.” And it’s not that everything she says is incorrect so much as irrelevant, if the article is purposely meant to comment on the recent 2nd Circuit Court ruling in favor of Google in its ongoing litigation with The Authors Guild.
Not only does this lawsuit have nothing to do with publishers, the timing of Duffer’s article, essentially making an argument for the worthiness of Google Books, might lead readers to think this lengthy litigation has been all about stopping the project from moving forward. It hasn’t. There is no need for Duffer or anyone else to extoll the virtues of Google Books when the litigant authors generally agree that the search tool is a tremendously valuable resource with great social benefit. Hence, The Authors Guild has never filed for injunctive relief asking the court to order Google to stop what it’s doing. What the authors do want is compensation from Google for digitizing their books. As stated by Authors Guild President Roxana Robinson, “We aren’t challenging the concept of a search engine, just the seizure of copyrighted material. If Google is willing to compensate an author for using her work, they’re welcome to offer searches in it as much as they like.”
In order to create the Books search tool, Google has digitized over 20 million complete works. Many of these are in the public domain; many are still in print and are still under copyrights owned by publishers; and many are works (in print or out) for which the copyrights are owned by the individual authors or their estates. The public domain works are obviously fair game; but regarding the books still under copyright, Google has a negotiated contract with the publishers but no deal to compensate any of the authors.
The full story behind this division is a ten-year saga of attempted deals and lawsuits going back to the days when this project began as a partnership between Google and publishers, and then the libraries got involved; but the individual authors who own their own copyrights have never been paid, which makes them wholly involuntary contributors to this potentially profitable venture for Google. (Please tell me nobody believes at this point that Google is doing this, or anything else, solely for the greater good. Can you say $400 billion market cap?)
Google has claimed that securing rights for individual works is too cumbersome, to which The Authors Guild’s Executive Director Mary Rasenberger responds, “Google has made much of how hard it is to clear authors’ rights. Our sister organization, the Authors Registry, can assure them it is not difficult. We can show them how it’s done, and with far less money than Google has at hand.”
To be sure, complaining about the scope of work required to clear these rights sounds a little fishy coming from the company that processes 20 petabytes of data every day, the organizer of the world’s information, the unrivaled leader in all things search and index, and the company that flaunts its ability to innovate at “Google scale.” It seems to me if you’ve got both the resources and the chutzpah to want to be the first company to digitize every book on the planet, that securing even a large number of rights should be a relatively minor function of the overall project.
Instead, it appears that if Google fought this hard and spent what must be millions in legal fees just to not pay the authors, their rationale is probably not about the money; and it’s not credibly because the process is too daunting for them. Surely, Google hoped to prevail on a fair use defense—as it has to date—and to break new legal ground in its ongoing effort to reshape the fair use exception until it is so over-broad as to be almost meaningless.
Having said that, legal experts will disagree about the extent to which this most recent ruling really sets new and clear precedent, rather than introducing a new vagueness to the doctrine that will only be clarified through future litigation. Either way, Google’s agenda seems transparent; and as much as we may like Google Books itself, the general public should not be too quick to assume that broadening fair use doctrine is automatically more democratic or will foster more innovation, particularly when the doctrinal change is being pushed so hard by such a powerful corporate entity. After all, Google has a pretty consistent track record for consolidating market share and for pushing boundaries in this country and abroad with regard to the rights and interests of individuals and small entities.
Whether Google pursues cases that weaken IP protections or privacy rights; or it exerts the power of its monopsony position on platforms like YouTube, I think people have figured out that Google is just a business and should not be assumed to represent all that is good about the idealistic underpinnings of the Internet itself. The company’s empower the individual rhetoric is just PR, and with the recent dropping of its founding motto “Don’t be evil,” we are reminded that this is all just business; and no business gets to nearly a half-trillion-dollar market cap without being at least a little evil to somebody. Google Books sort of makes this point; it’s a good service supported by somewhat evil means in that it disenfranchises the most vulnerable individuals involved, when this is unnecessary in order to fulfill its otherwise worthy goals.
I also think the Books case serves to highlight a pattern consistent with Google’s game of steadily eroding the legal rights and/or bargaining power of individuals while trading on the illusion that it serves as an engine of individual rights and individual voices. We’ve seen how the independent musical artists on YouTube have had the gateway drug of Content ID pulled from them if they choose not to sign the newly exploitative MusicKey contract. And with plans to launch the video subscription service YouTube Red, Google appears ready to employ similar hard-ball tactics with its most lucrative video content partners, offering them the choice of a lesser revenue-share deal or outright removal from the platform. (Lest anyone forget, it’s really TheirTube.)
If we combine the kind of pressure Google exerts on independent creators through its policy agendas with the company-store type terms it can dictate to individual creators, it’s easy to think of this strategy as the digital-age equivalent of union-busting during the late 19th and early 20th centuries. Strip labor (in this case content creators) of both their rights and their negotiating power while consolidating market share in a technological paradigm that fosters natural monopolies. It may be the future, but it’s actually a very old story being written in ones and zeroes instead of coal and steel.
© 2015, David Newhoff. All rights reserved.