In a few decades, when the judgment of history looks back upon the early 21st century, I believe that the Author’s Guild vs. Google and Hathitrust cases will go down as one of the more important decisions in the publishing and e-publishing world. The Apple agency pricing dispute has gotten more press, but in the grand scheme of things it’s really just a sideshow. The Google Books case dragged on longer, and more importantly, it’s had a huge impact—directly and indirectly—on the e-publishing world. Indeed, it’s helped to shape both e-publishing and the Internet we rely on today. This case has been critical, and it’s not over yet. Here’s why.
First of all, it distracted the publishers’ attention at a critical time. As Andrew Albanese explained in The Battle of $9.99, it kicked off almost exactly when Amazon was getting ready to launch the Kindle and effectively create the first mass-market e-book market from scratch. (Yes, a number of companies had been selling e-books prior to that—TeleRead was around to cover them—but their adoption was still strictly early-adopter, measured in fractions of a percentage point of the overall book marketplace. At the time, I half-wondered if anyone ever would want e-books, or if they’d remain a concept out of science fiction for several more decades.)
By taking up all the publishers’ attention and worry, the Google Books affair drew their minds away from Amazon. At the time, publishers didn’t have anything like the degree of hate on for Amazon that they do now—but even then, they didn’t view Amazon as an unalloyed good thing. They were a little suspicious of the company for selling so many books online, and drawing business away from paper bookstores. Amazon was effectively pulling a Barnes & Noble or Borders on Barnes & Noble and Borders. But even so, they were selling lots and lots of paper books, publishers’ bread and butter. And better companies than Amazon (for example, Sony, the inventor of the Walkman) had tried and failed to get any interest started in e-books, so why not let Bezos bang his head against that same wall for a while?
By the time publishers were fully cognizant of exactly what was going on, Amazon was off and running, consumers were flocking to its platform in droves even with Kindles still costing several hundred dollars each, and the publishers were effectively caught flat-footed, too late to do anything but watch as Amazon’s $9.99 new-and-bestseller e-books kicked off a chain reaction. Before they could turn around, Amazon had an immense head start that left everybody else in the dust. Even Apple, a respected computer company with decades of history whose iPod had made it the 800-lb gorilla of digital media, had to foment an illegal conspiracy to rein in Amazon’s retail prices before it felt able to compete with the company on an even footing.
Another big way the Google Books case has shaped our current digital world is simply by dragging on for so long. The nonsense around that proposed settlement agreement to let Google sell orphan works is largely responsible there. Whose idea was that? Where did it come from? As I’ve said before, Google never said it even wanted to sell orphan works before the Authors Guild smelled money in the water and came up with the idea.
Remember, this was before Android was more than just a bright idea. Google wasn’t a media company at the time, it was a search company, and that was the whole reason it wanted to digitize e-books in the first place—to index them for searching. That was its big area of expertise. Why would it want to do anything else with them?
But the Authors Guild wanted to do something else with them, and Google just sort of shrugged and said, “Okay, we’ll bite. If you want for us to be able to sell orphan works, why not?” The negotiations dragged on for years before Judge Chin finally got fed up and threw the settlement out, accounting for the vast majority of the time the case dragged on and on and on and on in the lower courts. And all the while, Google cheerfully continued to develop and extend Google Books, and kept right on scanning libraries and adding to it, because the Authors Guild never managed to get an injunction to stop them. So, by the time the case wound its way up to the appeals courts, Google Books was effectively a fait accompli, a part of the Internet that many researchers take for granted today.
Just how long did it drag on? Long enough that Judge Chin’s reason for ruling on it was fairly transparent—to finally be rid of that smelly dead albatross around his neck. The way it worked was that effectively the appeals court asked him, “Hey, do you think it could be fair use?” and a very relieved Judge Chin grasped that straw with alacrity and held on with all his might. I like to imagine a manic judge slamming down his gavel and yelling happily, “YES! YES, IT’S FAIR USE! THANK GOD! IT’S LEGAL! NOW GET THE HELL OUT OF MY COURTROOM AND DON’T EVER COME BACK!” before quietly breaking down and sobbing in a corner.
And finally, of course, the Google Books case was responsible for a ruling and an appeals court ruling that has been very important to the principle of fair use. While it didn’t necessarily extend fair use, it codified principles that a number of people already took for granted should be codified. I had already argued that, if you took the principle that it was legal to space-shift CDs into MP3s for your own personal use and built on it, it ought to be just as legal to scan paper books into e-books as long as you do it yourself for your own personal use. Well, there was Google scanning paper e-books on a huge scale for its own commercial use, and guess what? Yes, it was perfectly legal! It was first declared legal in the related HathiTrust case, and then the icing on the cake was when it just now happened for Google itself.
Now the Authors Guild is making a lot of noise about how terrible the ruling is and how it should be struck down by the Supreme Court. Joe Konrath has fisked their statement (and The Passive Voice has discussed it) and Nate Hoffelder has written an excellent post about how damaging it would be to the Internet should the Authors Guild either win in court or push a law through requiring Google to pay for the use of snippets. I can’t help wondering, though, how likely that would even be. I’m no lawyer, but it seems as though the decisions surrounding Google were not at all out of line with existing law and precedent surrounding fair use, and I just don’t see how the Supreme Court could overturn them at this point. Is there even a compelling reason for them to consider the cases?
So now we live in a digital world that the Authors Guild has unintentionally and unwittingly made. Amazon dominates the e-book market, and Google Books is a well-established, useful resource. The Authors Guild has hugely contributed to the troubles its Big Five publisher allies have found themselves in, and to the digital freedoms we now enjoy. For all that it continues to press for further restrictions, the fervor with which it seeks them has backfired in major ways, and seems likely to continue to do so. Perhaps we should all hope the Authors Guild continues to try to fight for publishers’ rights—for as long as it continues to be so spectacularly ineffective at it, it could be the best ally everybody else could possibly hope for.