Like a pair of boxers staggering from their corners for the ninth round, Google and the Authors Guild traded another round of briefs last week in their long-running, slow-moving Google Books fight. There is very little left to be said at this point in the case, and they said it at great length. The question is, why are they still fighting?
For Google, the book scanning program has always been a corporate backwater, something put together in its 20% time. Despite grandiose claims about a new Library of Alexandria and the occasional cool toy for bibliophiles, it has never been a marquee project. Twenty million scans later, Google Books still doesn't show up in the menu at the top of the Google homepage. YouTube it ain't.
But Google soldiers on because that's what Google does. It litigates online copyright cases as a matter of course. Storing and indexing content are so central to its business that it can ill afford to leave any precedent unturned. And because Google is consistently on the defendant side of copyright cases, and is willing to go to the mattresses when sued, it has endeared itself to academics, activists, entrepreneurs, librarians, and others who identify more with copyright users than with copyright owners.
The cases it has won so far have provided a strong baseline of users' rights online—including fair use cases, secondary liability, implied license, and DMCA immunity. Those victories, however, have not endeared Google to copyright owners. All of which goes some way toward explaining why the Authors Guild also soldiers on.
It has been a period of immense upheaval in the world of books, yet, the Authors Guild has focused its attention to a remarkable degree on Google’s library project.Over the last decade we've witnessed the rise of e-books, the agency model, the collapse of Borders, the decline of Barnes and Noble, Amazon, Apple, and the U.S. v. Apple antitrust case. It’s been a decade of closing windows, shrinking margins, stressed library budgets, extreme publishing, corporate consolidation, and more than a few near-death-experiences. Yet, Google remains a focus, even though, to this day, they are a peripheral player in publishing.
Even a win in this case would not give authors much. Google’s program stands alone for now—surely no one else will scan twenty million books, even if the courts were to give book scanning projects a green light tomorrow. Nor will bursting the Google pinata shower authors with cash. A victory here will not bring Borders back, or dam up Amazon. Google has a lot riding on a roll of the fair use dice, but for authors fair use is a sideshow. Their biggest digital problems have always from been hard-bargaining behemoths and scofflaw file-sharers.
For the Authors Guild, going after Google is a matter of principle. The suit reflects a common sentiment among copyright owners: that Google is getting rich in a business that involves copyrighted content, so, therefore, a part of that profit is rightly theirs. But unlike in the now-settled publishers’ suit, the emphasis is on "rightly" rather than on "profit." What the Authors Guild seeks is a judicial declaration of authorial power, an official statement from the courts recognizing the proper place of arts and letters in our national culture.
In that sense, Google is a stand-in for all the other massive corporations who sideline individual authors in the publishing world. If the courts order that Google must show authors proper respect, perhaps the others will have to as well. Suing Penguin Random or Amazon, or any of the other companies that authors actually deal with in fraught negotiations on a daily basis would be dangerous. Google and its library partners are safer adversaries, precisely because they stand at a further remove—the perfect adversary for a mostly symbolic fight.
There is a serious point to be made here about the nature of a digital business built around free—see Robert Levine for a particularly clear statement of that position. But eight years in, would it not be possible to say the point has been made?
Instead, the first pages of the Authors Guild’s latest brief flirt with Google Derangement Syndrome: the belief that everything the company does is a Machiavellian profit-maximizing scheme that simultaneously squeezes content owners and suppresses competition.
But it's a little rich for the Authors Guild to now argue that Google's book scanning program is an attempt to gain an unlawful advantage over Google’s competitors, given its role in pressing a complex settlement that Judge Chin rejected because it would have given Google an unlawful advantage over its competitors. Some stories are too compelling for their own good, and the Authors Guild’s lawsuit is now trapped in the trope of Evil Google.
No one who has followed this case since 2005 can truly want for a judicial opinion on whether Google’s book scanning and searching are fair use. And the briefs filed so far in this case will change no one’s mind who already has an opinion, least of all Judge Chin’s.
Officially, Judge Chin is undecided and is giving the parties their proper chance to persuade him. But his scheduling orders are the work of a judge who would like to bring matters to a close, and soon.
He recently brushed off a request to delay the upcoming oral arguments by two weeks. In contrast, it took Judge Chin a year after the fairness hearing on the settlement to draft his short opinion rejecting it. It seems he may well be poised to rule on the fair use motions in short order. And everyone involved, even the lawyers, should be glad to have done with it.
However the case turns out, the irony of it all is that Google Books was actually built by book people. Not book industry people—that is, people familiar with the curious customs and sensitive subjects of the trade—but those who love words on the page and words on the screen, the kind of people who populate Robin Sloan’s beautiful novel Mr. Penumbra's 24-Hour Bookstore. That Google so thoroughly botched their first impression is one of the many sad publishing stories of the last decade.