My latest column for Publishers Weekly — minus the Stanley Fish reference in my proposed title — is live at PWxyz. This one is about Google’s appeal of class certification in the Authors Guild’s lawsuit:

A third set of objections challenge the right of the three named author—plaintiffs—Betty Miles, Joseph Goulden, and Jim Bouton—to represent all authors. In theory, representativeness objections are fixable: just name a more diverse set of lead plaintiffs. But in practice, the Authors Guild has gone to war with the plaintiffs it had. It is not at this late date about to invite Pamela Samuelson to sit down and join the lets-all-sue-Google party. If the class action goes down because the lead plaintiffs aren’t adequate representatives, it’s unlikely to rise again.

Google’s version of this objection is to argue that many authors: it helps them with their research, and it helps them market their books. The academic authors’ version is even sharper: academics benefit from having their books widely findable and accessible, wholly independently of whether those books sell more copies. Google has a survey showing that 58% of authors approve of having their books in snippet view; the academics’ brief is signed by dozens and dozens of book authors who would prefer Google to win on the merits.

The question here is simple but profound: who speaks for authors? In one sense, the answer is easy: every author who speaks up speaks for herself. Tell Google to take your book out of Google Books and it will (or so it promises); tell Google to include your book and it will. Neither group needs the clanking machinery of a class action to make itself heard. It’s the great middle—those authors who have neither opted-in nor opted-out—for whom the class action really matters.

This essay neatly ignores the whole issue that according to current US copyright law, entities who want to reprint/reissue copyrighted works, or create derivative works from them, must seek permission from the copyright holders before making such use of the work. Not force copyright holders to chase all over the place discovering who is reissuing their copyrighted work and forcing that entity to stop, whether by opting out of the entity’s database or by expensively suing the entity. And if the opt-out method is approved by the courts, copyright holders will be forced to chase numerous entities in addition to Google, and in addition to the hundreds of libraries represented by the ever-growing Hathi Trust consortium.

Therefore, this lawsuit matters for all authors. As a copyright holder, I don’t want to be bound by what some survey says 58% of other authors want done with their work, or what they think is fair compensation for reissuing their work. I also don’t want to chase and possibly sue every search engine, library, publisher, and individual who seizes my work without my permission and damages my income as they please till I “opt out.” And I don’t want a contract I carefully worked out with a publisher, defining my rights in the work, to be overturned merely because someone wants to scan my work.

I need to determine what works for my needs. And current copyright law—which does not permit mass copying, as determined for photocopies—does enable me to do all that. Google’s actions are an attempt to overturn current copyright law in their own favor, not to establish law where there is none. It’s not as if Google has to mass scan books—they created this problem,

This entire situation boils down to a simple question:

In this context, must one ask forgiveness or beg permission in advance?

Google et al. believe that asking forgiveness is good enough. The Copyright Act sets the default condition — with a passel of exceptions large enough to at least sit down at the table with the rule, and perhaps make a game attempt at swallowing it — as requiring advance permission.* Somewhat more sarcastically, Google wants to impose its business model on everyone else, while the AG demands that Google adapt its business model to its perceived institutional interests.

Needless to say, there will be a lot more losers than winners as a result of this litigation, no matter who “wins” (other than the lawyers, that is). As Judge Chin observed the first time that class certification came in front of him, this is really a matter for a legislative solution that does not have the conceptual problems of crossing some line, somewhere, between “interpreting the law under the facts before the court” and “declaring/changing the law under unanticipated circumstances”.

• The Berne Convention itself is arguably even stronger and with fewer exceptions… and it’s a treaty, so (in theory at least) it should be considered in the process of resolving this mess, too.

Frances, your view about seeking permission begs the question this lawsuit is designed to settle: whether Google’s scanning is legal under copyright or not. But because whether Google’s scanning qualifies as fair use is an open question in copyright law, it is necessary to resolve it through litigation. The class certification question is just about whether it needs to be resolved through individual lawsuits or can be resolved all at once through a class action. Nothing stops you from bringing your own lawsuit against Google; at stake in this appeal is the narrower question of whether you can sit back and let the Authors Guild litigate for you.

Similarly, C.E., you are running together the questions of fair use and license. If the scanning is a fair use, no permission or forgiveness at all is required. If it is not a fair use, then the forgiveness/permission question enters in at class certification and in fashioning remedies.

The contours of fair use constitute one of those exceptions-that-might-eat-the-rule that I was referring to. It’s a particular problem for foreign works that do not have so expansive a fair dealing provision in their domestic law; this is a depeçage problem worthy of a Conflicts final exam question. One might argue that the site of the copying determines which law applies… but that itself implicates the depeçage problem!

Remember, too, that “if” scanning is fair use has that conditional… and it’s a conditional depending upon conditions, as it were, and not upon post hoc rationalizations. <sarcasm> Google isn’t the government, yet, and only the government (specifically, the legislature) is allowed to justify its actions under post hoc rational-basis review. </sarcasm>

This is a much harder question than I think either “side” is willing to admit, especially if one takes Feist seriously and considers that its information/expression dichotomy goes directly to two of the four statutory fair use factors…

James,

If the mere question is whether Google’s mass scanning is legal, then why was there a long-debated proposed Settlement that expressed Google’s desire to use the millions of copyrighted books scanned to enrich their search engine, to publish entire books as both e-books and print-on-demand books, to compile anthologies, to pass the scans to libraries to lend at will, and other uses?

Why was there a lawsuit that resulted in the use of the scanned works to present snippets as search results for the vision impaired only. Something I did not find at all clear in your PW blog post, but it is the verdict, right?

OK, so maybe this is the license issue. But no one believes that the books were scanned not to be used at all by Google and the participating library partners.

And of course you know that there is a huge barrier to myself and almost all other authors to suing Google. We don’t have nearly enough money to fight Google in court, and Google does have ample money to fight us.

Judging from the terms of the two proposed Settlements I have seen, I don’t want the Author’s Guild to litigate for me. I want Google to respect my rights and not scan my books to begin with. Even if Google and all their library partners merely stored the files on servers without ever using them—though I fail to see why they’d bother scanning millions of books for that purpose—there is still the danger that pirates could hack one or more of those servers and upload all the files to pirate sites. I agree than if a publisher published an e-book of one of my works by contract with me, that might happen, but at least I could put language in the contract where the publisher would pay me damages. And I have very intentionally avoided publishing any e-books or licensing such publications to keep my e-rights and files in my own hands, meaning I don’t want Google or anyone else to just seize them from me.

If the mere question is whether Google’s mass scanning is legal, then why was there a long-debated proposed Settlement that expressed Google’s desire to use the millions of copyrighted books scanned to enrich their search engine, to publish entire books as both e-books and print-on-demand books, to compile anthologies, to pass the scans to libraries to lend at will, and other uses?

Because Google, the Authors Guild, and the publishers proposed a “settlement” that was not meaningfully limited to the conduct at issue in the actual lawsuit. But now that the settlement has been rejected, Google’s actual conduct—scanning, indexing, and snippet display—is back up for consideration.

The HathiTrust decision:

• Held that it was fair use for the libraries to retain the scans and create a search index for all users.
• Did not discuss snippets, as the libraries do not display them.
• Held that it was fair use for the libraries to show full books to their print-disabled patrons.

BTW, I just spent the entire evening dealing with the opt-out model.

One of my readers posted on Facebook that someone had posted material from one of my books on Pinterest. This reader did not notify me directly, though she knows I participate in that Facebook group. She provided the URL of the violating material.

I looked at the material. It was posted on Pinterest by someone who uses what is clearly a net alias, and although she has used the same alias in several other places, nowhere on the net could I find any direct contact data for her. Therefore, I had to send Pinterest a takedown notice.

Although some Pinterest users do not link to the site they copied from, this user luckily did. Her source site, a quilting website, had copied my material as an “article” without attribution to any author at all (the Pinterest user apparently recognized my material and mentioned on Pinterest that she thought it was mine). This material was posted without any authorship, so I had to trace the ISP of the quilting website and send them a takedown notice.

However, the Pinterest site says my material was “pinned”—copied—nine times, in addition to the two violations above. I searched Pinterest for those nine copies as well as I could, but it is very difficult to find anything specific there, and I found none of the copies. In any case, Pinterest actively encourages users to “repin”—copy—on Facebook, Twitter, and everywhere else they can think of.

I did an image search in a search engine, but only found one of copies. This was on http://weheartit.com, a site that imitates the Pinterest business model. The material was posted under what is likely a real personal name, but there is no way to directly contact that person. So I had to send weheartit.com a takedown notice.

This leaves me the other eight copies to find and deal with.

Imagine this problem multiplied over all the nine books I have written, and including—as in this case—parts of books, with no title or author given for the part copied.

That’s what opt-out means to me. Even if I don’t have to sue these ten copyright violators.

And did the Hathi Trust ruling require the libraries to define who is and is not print disabled?

The opinion does not discuss the process of determining who qualifies as print-disabled, other than to cite paragraph 105 of this declaration by John Wilkin.

The US Copyright Act Section 121 ‘Chafee Amendment’ defines eligible disabilities at Section 121d2.

If a copy is made by a library or anyone else for a person with a print disability under Section 107 Fair Use, there IS no such definition. One might assume, therefore, under such an exemption, a person with an eligible print disability is anyone who claims such disability.

I doubt that a court would approve of that assumption, because it is inconsistent with the purpose of finding print-disabled access to be a s. 107 fair use.

That would assume that the making of a complete copy of a copyrighted material for a person with a bona fide print disability IS a Section 107 fair use. There is no history or ‘authoritative support’ to that effect and much history to the contrary except for the present AG v HT O&O under appeal.

Yes, of course one might disagree with the HathiTrust ruling, but your previous question only makes sense if HathiTrust-style uses by the disabled are fair uses. If they aren’t, it’s irrelevant how a disability is defined or determined.

The whole notion that there is some class of individuals who — for a given section 107(a) purpose and character of use — are eligible to make or receive a Fair Use copy of copyrighted materials but there is another class of individuals who are NOT eligible to do so is totally absent from Section 107.

Except for the part in section 107 that refers to “classroom” uses and the part that distinguishes “commercial” and “nonprofit educational” uses, and except for the judicial decisions (e.g. Michigan Document Services) that look to the identity of the user as part of the first-factor analysis.

Right — those all go to S107(1) ‘Purpose and character of the use’. They do not make a distinction about classes within the SAME purpose & character.

“Classroom” use, along with the other favored categories, are in the flush text of the section, rather than in the first factor. And where the copyright owner has chosen to segment its markets based on the identity of the user, it also becomes relevant to the fourth factor.

Fine. So as you said about 7 posts before it will take another court to decide just who is an eligible individual with a print disability under S107 fair use based on the current AG v HT O&O. Is it limited to or would it expand — as many professional educators and psychologists would claim — the S121d2 ‘Chafee’ definition and how does one go about establishing such under S107?

… and the Wilkin Declaration as referenced above mentions ‘reasonable accommodation’ in the UMich eligibility procedures which is a term from the ADA and appears nowhere in the Copyright Act. So is Judge HB suggesting that there are ADA implications to being eligible for fair use?

Sure, Judge Baer’s decision creates some uncertainty about how far it extends. But so does every decision in a common-law system. Courts decide the cases before them; anything they say about hypothetical future cases is just a prediction, of no more legal force than your predictions or mine. And the country is divided into states and circuits and other judicial categories that limit the binding effect of precedent, so courts can disagree with each other even on identical facts. So yes, there are lots of unanswered questions here, but that by itself is not an issue with Judge Baer’s decision.

Your point more properly is that you disagree with the decision and you think that it’s inconsistent with the Copyright Act. Many of your points were never presented to Judge Baer in the first place; the Authors Guild and its lawyers made the tactical choice not to present them. As for the rest, you’ll have a more persuasive argument if you recast these points into a claim that the decision is “wrong … because” rather than framing them as questions about the ruling’s implications.

The final sentence of the current O&O (with some words omitted) is:

… Defendants may certainly rely on fair use, as explained above … in the event that they are not authorized entities.

‘Rely on’ just how? I am a US Library of Congress Certified Braille Transcriber. As a practitioner I am only interested in what the current ruling means to me in terms of what category of persons might benefit from my services as a valid IRS 501c3 Chafee Amendment authorized entity or by virtue of fair use.

As to what is wrong or ‘absurd’ in the Judges ruling I’ll wait and see what the Authors Guild lawyers have to say which might only mean waiting for a few more days.

I certainly think there should have been some requirement that the publisher had not already issued an e-book, audiobook, or Braille edition of a given book before declaring it fair use to distribute scans of it.

I fervently hope for an appeal or another lawsuit.

From Document 171 REPLY IN SUPPORT OF DEFENDANT INTERVENORS’ MOTION FOR COSTS AND ATTORNEYS’ FEES:

Now, this Court has established that blind individuals’ access to the HDL is protected under the ADA, the Rehabilitation Act, fair use, and the Chafee Amendment … The change in the legal relationship between NFB and plaintiffs could not be clearer.

A diagram of such ‘clear relationship’ would look something like this (courtesy rube Goldberg): http://bit.ly/RkecmH

The end result may not be clear, but the change certainly is.

I will agree that if Judge Baer’s O&O is sustained there will be significant change. Stay tuned.