Authors Sue Google Over Its "Print for Libraries" Project: Will the Suit Succeed? Should It? And Why, As An Author, I'm Opting Out of Any Class Action

By JULIE HILDEN
julhil@aol.com
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Monday, Sep. 26, 2005

While the University may own the books themselves, it is the authors who own the copyrights. And copying copyrighted work without permission - or in legal terms, a license -- from the authors is, at least technically, copyright infringement.

The lawsuit, then, is quite simple. And so is the defense: Google says its project counts as "fair use." "Fair use" is an exception to copyright law, allowing someone to use copyrighted material without permission if the purpose is considered "fair." Common examples of "fair use" are uses for criticism, comment, news reporting, teaching scholarship, and research.

In defending its project, Google draws an analogy to library card catalogs - which help visitors find the books they want. According to Google's own statement, in its project, "copyrighted books are indexed to create an electronic card catalog and only small portions of the books are shown unless the content owner gives permission to show more." Google suggests, then, that its project ought to be no more objectionable to authors, than card catalogs are.

In this column, I will address four questions: Should this suit be certified as a class action? What should Google's position be on class certification? (We know the plaintiffs position: They want it.) Who's likely to win this suit? And, assuming the suit is certified as a class action, should individual authors opt in, or opt out?

This Ought to Be Certified as a Class Action Suit

The Authors' Guild wants to make the suit into a class action, and - regardless of one's view on the merits - class action treatment seems to make sense here.

All the authors whose books are in Michigan's library are in basically the same position: Their work is being used, in this limited way, and no one has even sought - let alone procured - their authorization.

For this reason, the suit satisfies the federal class action requirements: Its three named plaintiffs' claims are typical of those of the class; class members are quite numerous; and the claims of those in the class raise common - indeed, more or less identical - issues of law and fact.

It should be to both sides' advantage for a class action to be certified here:

A class action will mean that if the Authors Guild wins, Google simply can't go forward. The damages would be too great, and an injunction could be very broad. So it would be a complete win for the Guild.

Conversely, if Google wins, it won't have to contend with numerous duplicative suits by individual authors across the country - the legal equivalent of death by a thousand cuts. And that would be a complete win for Google.

Should Google Oppose Or Support Class Action Treatment Here?

The conventional wisdom is that a defendant should never agree to class action treatment of a case, for it dramatically increases the potential damages, and results in enormous pressure for settlement.

Nonetheless, Google probably should simply agree to class action treatment here - for this is a rare case. Class action status would, obviously, increase actual damages. But actual damages seem quite limited, since the Project is not yet complete. (Indeed, plaintiffs seek, not only damages, but a court order enjoining Google from going forward.)

Granted, agreeing to class action status would be a very risky option for Google - in part because a plaintiff can opt to have a court award - in lieu of actual damages -- the amount the court considers just. In other words, a court can pick a number virtually out of a hat, if it so chooses. And a Google-hating court might come down hard on the company.

But there's lots of risk on the other side, too: If Google doesn't agree to class action treatment, lawyers could start making a living out of filing multiple complaints by aggrieved authors, all over the country. Authors, typically, can find lawyers easily - and may even be able to take advantage of their publishing houses' lawyers. And lawyers would have little to do in filing individual cases: They could all basically copy the complaint just filed in New York.


Moreover, I think most judges would realize that the law here is unsettled, and in light of the lack of actual damages, they would award low - or even no - statutory damages.

Not only is the law unclear, it's also unclear what a "just" resolution requires. After all, who would be getting a windfall here? Would it be the authors, if they won, since they probably never even envisioned the sale of this kind of license? Or would it be Google, which will be able to profits from paid ads that show up alongside the results of the searches? The answer is not entirely clear. In a sense, either side, if it won, would enjoy a windfall.

If the case does not settle, I certainly hope the judge takes the tack of awarding low damages -- for this is a copyright case where the defendant's "fair use" claim has a strong public interest component.

The truth is, Google is pushing the envelope, but in a way that would benefit not only the company but, arguably, society too - as I will explain in the next section.


Will the Print for Libraries Project Really Just Be a Super-Efficient Card Catalog?

Let's face it: card catalogs suck. So does the Dewey Decimal system. Google's brilliant search techniques - which get a searcher what she wants in seconds - have put these crude ordering systems to shame.

Having a super-efficient card catalog, Google-style, would be nothing short of amazing. It would help professors, students, and other information-searchers and writers tremendously.

Google's project could also revive interest in books currently gathering dust on library shelves. Indeed, it might even rewrite even the literary canon, the set of books hallowed and honored by English professors, and collected over the years in anthologies. Google's project might allow would-be readers to rely on their own searches, rather than just trusting the Norton Anthology or professors' reading lists, to find the books searchers themselves love and value the most. In a democracy with a strong First Amendment, should we really let "experts" tell us what to read?

Still, let's be honest: Google's project will also be much more threatening to authors - especially nonfiction authors - than a card catalog could ever be. A researcher who might have had to buy a hundred arcane books for a Ph. D. thesis - either because of a lack of university affiliation, or because the topic is very specific, and even university libraries are limited - now may be able to cherry-pick information from the same books on Google, instead.

Also, the Author's Guild may argue that thousands of libraries that might have bought books, may now just offer computer terminals instead. Google's project, then, may make one's local library almost the equivalent of a university library - but it will also mean that the bottom might drop out of a once solid market for nonfiction books: the not-inconsiderable market of sales to university libraries.

(Markets, however, are unpredictable: University libraries may continue to value the physical access and the sheer pomp and circumstance of collecting actual books. Will they let the shelves of their stately libraries sit empty? After all, if students are to be persuaded not to simply study online, which is cheaper, one way to persuade them to actually attend brick-and-mortar universities is to offer books and the aid of adept librarians.)

These market considerations are related, as I will explain, to the main legal issue here: fair use.

Who Should Win This Suit? Is Google's Use "Fair Use"?

Let's go back to Google's card catalog analogy. A card catalog reprints a negligible amount of a book. Basically, it includes the title, a synopsis (one not written by the author) and some indexing words.

Thus, not only is a card catalog's use of a book obviously "fair use," it is barely - if at all -- copyright infringement in the first place. Titles aren't protected by copyright, and grabbing a word or two has never been thought to be infringement.

In contrast, Google's use of a book for the Library Project presents a far more difficult fair use question. Presumably, the whole book will be available for searching on Google, even if only small chunks can be displayed at one time.

So in theory, a devoted searcher could read the whole book on Google, rather than buying it at a bookstore or borrowing it at a library - and that certainly sounds like infringement.

But in reality, who would be crazy enough to do this? How many people with unlimited computer access have this much time on their hands, or can endure reading this way?

Perhaps some other software could recompile a given book from the results of Google searches. But we should cross that bridge when we come to it - and that software might well be illegal as a copyright-violating mechanism under the Digital Millenium Copyright Act (DMCA). (For more on the DMCA, see my previous column on the statute; for more on libraries and copyright, see another prior column of mine.)

On the whole, I think Google's use of a book should be deemed fair use.

And, most likely, it will be: While this isn't an ideal approach, legally speaking, the reality is that copyright lawyers typically use the percentage of a given work that is taken by a given use, as a good proxy for whether a use is fair. Thus, taking a very small percentage of a work, verbatim, is usually still seen as "fair use."

That's basically because taking a small chunk doesn't usually interfere with the market for the whole. In general, that will be true for Google's project, too: Its search function seems more likely to be used to find books, than to moot the need for their purchase.

It's true, though, that some searches will inevitably moot the need for the purchase - or, at least, borrowing -- of some books, by some users. A researcher looking for a particular statistic may simply find it on Google, in a displayed chunk of a book - instead of having to buy or borrow the book. And that cuts, at least somewhat, against a non-interference-withthe-market "fair use" finding. (But it's likely that the statistic, unless it's really unusual, can also be found elsewhere on the Internet - for instance, by using the techniques John Dean described in a recent column.

Should this kind of rare but real "replacement" use matter?

In deciding whether it should, we should take into account, I think, that we are probably really talking about preemption of library purchases, not individual purchases - which lowers the stakes.

The truth is, few individuals will buy thirty books to find a single fact - and those who will actually skim that many books, usually have access to a university library, and will do their skimming there.

Google, then, is more likely to enable new research, rather than displacing the income stream to nonfiction authors from old research.

And when it does displace an income stream, we're talking about purchases by a limited (though, again, not inconsiderable) number of libraries, not a potentially huge number of individual purchases.

For all these reasons, I'd deem Google's "fair use" argument the likely winner here. Surely, technical copying is going on here - in the form of the scanning of the book. But the point of copyright law isn't to protect against copying, it's to protect against harm to the value of intellectual property. And it seems that Google's project is likely to inflict little of that latter type of harm.

Should Authors Opt Out If This Suit Is Certified as a Class Action?

Many authors may participate in this class action, in order to protect an encroachment on what they consider their intellectual property rights. Indeed, as noted above, three already have; they are the named plaintiffs in the case.

Additionally, there may be a desire, on the part of some authors, to encourage future authors - especially those with groundbreaking or intellectually revolutionary ideas -- to publish without the fear that the free availability of digital copies of their work will cut into sales, and deprive them of an income they had counted on. The hope or expectation of such an income, after all, may have provided the incentive to continue writing and developing their work, despite hardships. And this kind of incentive is the reason copyright is protected in the first place.

However, not all authors may feel this way.

As an author myself (and, incidentally, a one-time Author's Guild member) I feel very conflicted about this lawsuit. But I've decided I'll opt out of the class action, if this suit becomes a class action (or decline to opt in, as the case may be). In other words, I won't take Google's money for this use, no matter what.

Besides being a writer, I'm also a strong free speech advocate, and Google's project may well help free speech more than it hurts it. I want to see the advance of human knowledge much more than I want to get paid for making my books searchable. The fact that they might become searchable, to me, is a welcome surprise.

Perhaps if I wrote research-based nonfiction (my books are a memoir and, more recently, a novel), I'd feel differently. And perhaps if I were a bestselling writer, I'd feel differently. But I doubt it.

Actually, if I were a bestselling writer, I think I'd worry a lot less about money, and a lot more about free speech - and feel even more strongly about opting out. (Think, for instance, of Stephen King's taking the risk of allowing readers to pay for his groundbreaking downloadable work on an honor system.)

Could Google's Project Actually Help Authors Make More Money?

Moreover, from a more pragmatic perspective, in the end, Google's project - and the other electronic developments in publishing that may have synergies with it -- may also help authors like me financially.

It's insane that books cost as much as they do. It's insane that they still appear in costly hardcover. Readers should be outraged.

It's insane that authors typically, by contract, get as royalties only about six percent of what their books bring in - just a bit more than a nickel on the dollar. Authors should be outraged. (Granted, there are also advances, but they are supposed, at least in theory, to approximate that very six percent - and are therefore deducted from royalties. Until an author "earns out" the advance because it exceeds six percent of royalties, he or she won't see any more money from the book.)

How will this situation ever change? I think it will have to be through more readable, convenient e-books, downloadable over the Internet into a fairly light iPod-like reader.

This technology would eliminate overhead and distribution costs, and allow authors to get a much larger share of the money that comes in from the sale of their books. Selling only 5,000 copies of a $10 e-book could provide an author a modest income for a year, if the author reaped all the profits.

Authors might have to give up advances, and rely solely on royalties - but some authors, such as the venerated Isaac Asimov, have done just that, to their great profit. If a writer believes in his work, he may want to take a risk on it. Many of us write on "spec," or for reasons that truly are not financial, anyway.

Authors' reaping all the profits isn't realistic, of course: Editorial and publicity costs will and should always remain. But authors should get more than six percent!

And other benefits, too, will accrue to authors from downloadable works. For instance, conventional industry wisdom now is that a short story or essay collection is hard to sell. But the use of downloads might actually bring shorter works into vogue; a short story appearing on an iPod-like eBook reader would be a perfect fit for a commute.

The Future: If Google Helped Sell EBooks, Authors Could Profit Greatly

So in the end, rather than joining the challenge to Google's Library Project, I'd like to pose a challenge to Google: When are you going to apply your genius to eBooks?

Having scanned all those books in already, wouldn't you like to distribute them too? Of course, for that, you would need a copyright license - but I think many authors would give you one for a low fee.

In the future, Google's Project might even do for eBooks what Apple did with Itunes: Provide a sample of a work, as an inducement to download the whole thing at a modest cost, and entirely legally.

Because of hopes for innovations like this - which will bring authors profits, protect copyrights, and potentially democratize book-writing, much as music has been democratized - authors may be shortsighted if they support the Authors' Guild suit.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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