Written by Chris Castle

Google’s Bad Advice: Score round 1 for the authors

Unsurprisingly, Google lost the first round of the Google Books case.  What was somewhat surprising is that the main reason for Google’s loss was its failure to take into account the reaction of the authors–the Court noted that “[n]ot only are the objections great in number, some of the concerns are significant. Further, an extremely high number of class members — some 6800 — opted out.”

Of course, looking only at those who opted out does not squarely address those who did not feel they needed to do anything to enjoy their rights–such as EMI Music Publishing and Sony-ATV.  These two companies alone represent over one million songs.  (What do songs have to do with books?  Google attempted to sweep lyrics into the settlement.)

The Court also noted that the question of orphan works should be resolved by the Congress, not the Court.  “The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003)….”
 
We will have much more to say about this decision.  But there is one very, very important point worth noting.  There was about as much highly paid legal horseflesh at bar as it may be possible to muster.  Many academics and lawyers, even countries, had their say. 

But the Court seemed most persuaded by individual authors who wrote opt-out letters to the Court:

“An author from the United Kingdom states, very simply: “I do not want my books to be digitized.”   A 79-year old nature writer and author of 23 books illustrated with photographs of animals in the wild worries that the loss of control over her works could result in their being used to “vilif[y] the wildlife I spent my life trying to help the public come to understand and protect.” An author from Canada writes: “I am opting out because I believe in the integrity of copyright. I believe that only I, myself, should have the right to determine how my work can be used.”

Finally, an author from Texas gives the example of her grandfather. He self-published a memoir, Dust and Snow, in 1988.  He passed away in the 1990s, and the copyright to the book passed to his three daughters. The author observes:

From Google’s point of view, Dust and Snow is an “orphaned” book. If and when Google scans it, the company is likely to be unsuccessful in trying to locate the publisher, since the book was self-published and my grandfather is now deceased. In essence, the way the settlement is written, such “orphaned” titles are automatically handed to Google free of charge to do with as it will.  From my family’s point of view, Dust and Snow is not orphaned at all. It is  very clear who owns the copyright. So why is Google being granted the automatic right to take over the copyright of books like my grandfather’s?”

Easy answer to that. 

It’s not.

At least not today.

All authors reading this decision should be heartened by the Court’s concern with their views.  This is what the Court is supposed to do.  The Court is supposed to protect those who cannot fight the Leviathan.  The Court is supposed to protect the innocent who cannot protect themselves when they are set upon by vileness and the tyranny of evil.

It seems that in the quiet moment in chambers when the Court considered the magnitude of its decision it was these voices–not the high priced ones–that were most persuasive.

It is important that creators be heard and that creators fight back to protect their works, even if it seems that the odds are long, the chance of success remote and the cost of the fight may be dear.