- David Chavern
The Supreme Court’s recent decision to deny review of the Authors Guild v. Google, Inc. ruling was a blow not just to the suit’s plaintiffs in the book industry but to all of us in the business of writing and publishing content.
Here’s why: The lower court’s decision in favor of Google ruled that its project to digitize millions of books and create a searchable library did not violate the authors’ copyrights and did not require permission or monetization. In allowing this ruling to stand, the Supreme Court has created a remarkably expansive view of the Fair Use Doctrine – which is, ironically, now unfair to the content creators themselves.
The copyright law is intended to protect authors and creators, not allow another company to commercially benefit from their work. Yet, recently, the “fair use” defense, codified into law in 1976 to allow reproduction for purposes of public knowledge – such as research, criticism and reporting – has been used to the benefit of the technology companies that publish others’ valuable content on new platforms. However, no new expressive content is being created, a key factor that must be present in determining a fair (or transformative) use.
Instead of simply providing a way for others to build on the original work to create something new, the courts are favoring technology companies’ new ways to use original works. This is reflective of our grossly outdated copyright law, and a lot has changed since fair use was first defined in 1976.
Just think: 1976 was when Steve Jobs launched Apple, and the first cellphone wouldn’t be created for another three years.
Isn’t it time the courts and the U.S. Congress revisited our copyright laws to ensure they adequately protect authors in today’s digitally connected world? We can’t allow technology companies to leverage and sell content – books, news stories, or other written works – on new platforms without giving the original content creator any of the benefit.
Content creation always requires tremendous investment. In journalism, for example, one news story is typically written by a (paid) reporter, fine-tuned by a (paid) editor, designed by a (paid) designer and perhaps leveraged on social media by yet another (paid) staff member. If technology companies are able to leverage this original content in new ways – and make money from it – than that directly hurts the ability of the creators to earn a profit in the same way.
Take Google’s Library Project. Although its purpose isn’t to make whole books available for free, it is still taking advantage of the content to create a searchable database. When users look for keywords, they have access to relevant parts of the original work.
This is a key piece of the company’s strategy to grow its market share, and it has essentially prevented authors from ever being able to make money from licensing their content for digitization and search. Our review of the Authors Guild, v. Google, Inc. case suggests that the court would have found Google’s practices harmful – and required them to pay licensing fees – if other licensing search arrangements had already existed and compensated the authors. It would then have the market impact that is required by the fourth factor of the fair use test.
Because Google is the first such company, and one that already dominates the search market, they have been able to essentially fix the market at $0.
This leads to more money for Google, of course, but doesn’t benefit the content creator, posing the possibility of significantly less investment in the literary field. It doesn’t require much imagination to see how the ongoing application of this unusually wide fair use ruling would hurt the news industry and other businesses that create valuable, exclusive content.