I know I’m a little late to this party, but I did want to say something about the Author’s Guild’s suit against Google. If you haven’t heard about this yet, the basic premise of the lawsuit is that Google is undergoing a vast project to digitize the texts of major libraries around the world, even copyrighted texts. That’s where they’re running into problems — the authors say this violates copyright, because they never gave permission for Google to do this. Even though Google allows individual authors to opt out, the authors argue that it should be Google’s burden to get permission in the first place. There’s a good summary of the issues surrounding the lawsuit at BoingBoing.
Scalzi may have hit the nail on the head with this little observation: “The day I actually have to worry about online versions of my book cutting into my sales is the day I know I’ve arrived.” For the most part, authors want people to see their work. Maybe Stephen King can afford to ensure that every set of eyes viewing his work is a paying customer, but most authors should be grateful for the opportunity to have more potential readers checking out excerpts from their work.
Like the folks at BoingBoing, I’m really not sure how a two-sentence snippet is going to cut into anyone’s sales, but even if it did, doesn’t this count as “fair use?” After all, fair use permits quotation in critical reviews. I may read a review of a book that convinces me not to buy it. Doesn’t that “cut into a book’s sales?” If I can do a quick search of a book and find a one-sentence gem that convinces me I don’t need the whole thing, doesn’t that suggest that the author hasn’t really written a book for me?
Tony Sanfilippo comments on BoingBoing that the real issue isn’t so much Google providing the snippets, but Google giving a complete digital copy to the libraries, in compensation for letting Google in in the first place. So he’s saying the real problem is libraries having the digital copy. But if memory serves me right, aren’t libraries specifically allowed to make digital copies of their works for archival purposes? If this is the case, isn’t the Google service merely like hiring an external contractor to do that? Surely you can’t sue a contractor for providing a service its client is legally permitted to perform. If authors are really worried about libraries getting a hold of their works, perhaps they should be suing Andrew Carnegie instead of Sergey Brin.
Scalzi argues that authors should ultimately have control over how their works are duplicated, even if said duplication is generally in their own interest. Essentially, his argument is that they’re stupid to be suing Google, but they have every right to do it. After all, copyright governs creating copies, and there’s no doubt that Google is making copies.
But let’s walk down this road a little further. Suppose Google Print doesn’t count as fair use. After all, it’s not really a critical analysis or review, or a satire, or educational use (they may have their best case with the educational use provision, but let’s assume this doesn’t fly). If Google is not allowed to make copies of books for the purpose of making them searchable, what does this say about the whole Google enterprise? Isn’t Google doing the exact same thing with its Web search feature? Google’s search engine trolls the net, placing copies of Web pages on its own servers. They even allow users to see a cache of the entire text of the page, without visiting the site itself. If Google Print is a copyright violation, then surely Google Web is a copyright violation as well. So basically, all current technologies for searching the Internet are illegal.
Imagine a Web without the ability to search — it would be an entirely different place. Some have even argued that the process of linking should be illegal — after all, the author of a site should be in control of its content. If an author only wants you to enter the site through its home page, isn’t that his or her right? But even dismissing that possibility, how would we locate content without the ability to search? Some massive advertising network? Would we go back to the Yahoo! model where site owners submitted URLs and waited for Yahoo! editors to index them? Maybe instead of a robots.txt file which allows site owners to opt out of search engine results, we’d have to use it to expressly give permission to be indexed. But think of the problems with such a system — even supposing everyone could agree to worldwide standard, would everyone understand it? And what about older sites that may not ever be modified to accommodate robots? Do they just … disappear?
These issues are too important to be left to the courts to decide. Unfortunately, they’re also probably too important to be left to Congress. I’m not sure which I’d prefer — the demon of litigation, which already has come down strongly in favor of rightsholders — or the monstrous beast of legislation, which has given us the DMCA and the Sonny Bono act, both basically written by corporate cronies with little input from anyone else. I think rather than opening up the copyright legislation ball of worms, this one is best fought in the courts. Let’s hope Google’s lawyers are better than those from the Author’s Guild, or the Internet is about to get a whole heck of a lot more restrictive.