Regardless of one’s opinion of whether scanning and (for-profit) snippet display and (for-profit) non-display use are “fair use”, Band’s analysis is fatally flawed by a host of erroneous factual assumptions and oversights.
Band gets off on the wrong foot with his description of Google’s partner program: “a publisher controlling the rights in a book can authorize Google to scan the full text of the book into Google’s search database…. The Partner Program raises no copyright issues because it is
conducted pursuant to an agreement between Google and the rightsholder.” In this, Band echoes Larry Lessig’s mistaken conflation of “publisher” and “rightsholder”, causing his argument similarly to run off the rails. Anyone familiar with the actual background and context to the dispute would recognize that the Partner Program raises major copyright issues, because (a) the publishers claiming rights often don’t actually own those particular rights, and (2) there is no evidence that Google exercised due diligence in verifying print publishers’ rights claims (or, indeed, made any attempt to verify them at all).
Band might have been more likely to notice these issues had he paid any attention to the principal precursor to Google’s book scanning and display (and to the author-print publisher disputes it provoked), Amazon’s scanning, indexing, and display of much more than snippets under its “Search Inside the Book” program.
Band reveals a complete lack of understanding of the terms of actual book contracts, and their degree of (non) standarization, with his bizarre and unsupported claim that, “Attachment A arguably tilts towards the author because it provides the author with a larger share of the revenue than she would have received under her book contract with the publisher.” In fact, almost any realistic envisioning of the implications of Attachment A, in the context of the rights claims being made by print publishers and the structural advantages it gives them over authors, would lead to authors receiving a dramatically smaller share of revenues than they are entitled to under existing contracts (as is already happening with Kindle e-books).
Band notes that, “Supporters of the settlement further argue that it will benefit the authors of out-of-print books,” but fails to note the significance of the fact that all of the cited briefs raising this argument were from parties other than those authors themselves, who vigorously contested this claim.
Band’ explication of this argument makes clear how it, like Google’s attempt to spin opponents of the settlement as opponents of online availability of texts, rests on Google’s false equation of itself with the entirely of the Internet (“if it’s not on Google, it’s not online”, they seem to assume), and the corollary failure to notice the numerous ways that, no thanks to their publishers (and sometimes over their active attempts at obstruction, as in Random House v. RosettaBooks), authors are monetizing their electronic rights through licensing e-books, selling PDF’s, or posting HTML versions with advertising on authors’ own Web sites, among other methods.
In his portrayal of authors’ reasons for opposing Google’s book scanning and the settlement, Band is arguing with a straw man. While he’s right that, “The original Library Project would have been particularly important for authors
of out-of-print books,” he’s just wrong to think that, “the authors of the books would not have had the legal right to authorize Google to scan their books.” Authors believed they had this right, they exercised it early and often (in practice, many of their publishers having gone out of business and in no position to challenge it), and in the RosettaBooks case they successfully defended it.
Band is simply wrong to think that, “This large class of authors probably would have been pleased that Google provided users with a mechanism to find their abandoned books.” Leaving aside alternatives to Google, Google already provides such a mechanism: Google the title and/or author of an “out-of-print” book and you are likely not only to find not only the author’s Web site but on it a either the content of the book (with ads from which the author earns money) or directions for how to purchase an e-book or hard copy from the author or their licensee. Authors don’t generally abandon their books, and time after time in discussing the settlement with other writers I’ve heard from those making money — and expecting those revenue streams to grow as e-books’ share of the market for text grows— from books abandoned by publishers.
The authors who most strongly opposed the settlement were not those opposed to e-books or online availability of their work, but those already most actively monetizing their electronic rights, or expecting to profit from doing so over the life of their copyrights. Their fears were that Google, in cahoots with print publishers and their ongoing pattern of rights theft, would compete with and cannibalize authors’ revenues from multiple channels of electronic and online distribution of their work.