April 19, 2016 Last Updated 1:42 pm

Authors Guild, Electronic Frontier Foundation remain miles apart regarding fair use

It would be hard to find two entities who see less eye-to-eye regarding the concept of fair use than The Authors Guild and the Electronic Frontier Foundation (EFF). This was on display after the Supreme Court yesterday declined to review a lower court ruling regarding the Google Books case.

Google’s program, which was called Google Print at the time, involved scanning books so as to make them searchable for libraries. Google saw this as a perfectly good example of fair use as the program benefited the public by making content searchable, and kept out of print books alive. But the Authors Guild saw it as engaging in copyright infringement and so sued.

EFF-AGThe case bounced around but eventually, in late 2013, US Circuit Judge Denny Chin ruled in Google’s favor:

It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Google has hit a home run and the Authors Guild had struck out. Surely that would be the end of the case. But no, there was an appeal to the Supreme Court, which then declined to hear the case effectively, and finally, bringing it to a close.

But the Authors Guild remains very much unhappy.

“Today authors suffered a colossal loss,” said Authors Guild president Roxana Robinson. “We filed the class action lawsuit against Google in September 2005 because, as we stated then, ‘Google’s taking was a plain and brazen violation of copyright law.’ We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes.”

The criticism the Authors Guild has is that the court was “blinded” by the public benefit argument, and ignored the fact that authors are underpaid.

“The price of this short-term public benefit may well be the future vitality of American culture,” said Mary Rasenberger, executive director of the Authors Guild. “Authors are already among the most poorly paid workers in America; if tomorrow’s authors cannot make a living from their work, only the independently wealthy or the subsidized will be able to pursue a career in writing, and America’s intellectual and artistic soul will be impoverished.”

But the EFF sees the case completely differently. From their prospective, fair use allows copyright to exist for the public’s good, for the good of innovation.

“Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate,” Corynne McSherry, Legal Director at the EFF wrote. “New technologies and services, like the Google Books Project, depend on the creation of multiple copies as a matter of course. At the same time, copyright terms cover works many decades old and copyrighted software appears in more and more devices. Taken together, these developments mean the potential reach of copyright may extend ever further. Fair use makes sure that the rights of the public expand at the same time, so add-on creativity and innovation can continue to thrive.”

“Copyright law is intended to encourage and protect creative works of authorship, yet this new court-made doctrine favors new technologies over copyright’s incentives to create new works of authorship,” Rasenberger of the Authors Guild believes. “The Supreme Court needs to step in and clarify that fair use is part of copyright law’s ‘engine of free expression.'”

As noted, the Supreme Court came down solidly on the side of Google in this case, and not unexpectedly so. The good news, it seems to me, is that discussion around this topic is far more intelligent and civilized that anything on the political side. What many readers fear is that copyright is being used as a hammer to extend control of content for ever greater lengths of time, benefitting the copyright holder rather than the creator. Fair use, and technology, when combined are a moderator of copyright abuse, when seen from this perspective. Though that is clearly not the view of the Authors Guild.

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