Book Scanning is Fair Use

[Devor]

Counter intuitive or not, Amazon and its competitors have pursued an aggressive strategy of offering relatively good royalties to attract a large volume of authors, hoping to amass the market economies that would make them the go-to place for books. If Google can preempt this with an algorithm, then listing your book has significantly less value and they will have every incentive to reduce royalties, especially for poor performers. They won't need the volume.

 

[Steerpike]

Counter intuitive or not, Amazon and its competitors have pursued an aggressive strategy of offering relatively good royalties to attract a large volume of authors, hoping to amass the market economies that would make them the go-to place for books. If Google can preempt this with an algorithm, then listing your book has significantly less value and they will have every incentive to reduce royalties, especially for poor performers. They won't need the volume.

I doubt a court is going to come out that way. Have you seen how many sites online basically just aggregate listings of products? If your approach won out, then no site would be able to aggregate product listings/descriptions and the like and link to the underlying seller so that a user of the site can go purchase the item. The only difference here is since we're talking about books instead of, say, a digital camera, the plaintiff can assert a copyright claim. But I'm not sure that's going to get them very far.

 

[Devor]

I don't see how it's harming one's ability to market the book. I feel it would help increase the marketing of ones book. I would be ecstatic to find my book on Google Books. I can't comment on the legalities and such as that is not my background, and I retain no knowledge of it. I just want to say that from an outside observer, I don't see how it could be illegal.

There's something called a fallacy of composition, the assumption that what's good for you as an individual author would be good for you in your connection to a group of authors. Of course anything that drives sales of your book is good for you. But let's say that being true causes royalties to go down across the board - you'd still want your book listed there, even if it hurt you and everyone else.

I don't mean to sound like a doomsday preacher. I'm only trying to make a legal point - Google is a long way off from reaching that kind of impact, and I doubt they'll be able to get there. People don't like middlemen. But the potential is there, and that's what counts.

 

[Steerpike]

There's something called a fallacy of composition, the assumption that what's good for you as an individual author would be good for you in your connection to a group of authors. Of course anything that drives sales of your book is good for you. But let's say that being true causes royalties to go down across the board - you'd still want your book listed there, even if it hurt you and everyone else.

I don't mean to sound like a doomsday preacher. I'm only trying to make a legal point - Google is a long way off from reaching that kind of impact, and I doubt they'll be able to get there. People don't like middlemen. But the potential is there, and that's what counts.

No, I hear what you're saying and I understand. I'm not sure the 'potential' alone counts for much in court. It's an argument to present, but I don't know how effective it would be without some kind of evidence of the kind of harm you're talking about. Do you think the same arguments come into play in the other kind of aggregation sites I mentioned?

After this, it would be nice to see the Author's Guild case actually go all the way through the process, just to see how it comes out. Instead these things usually settle, and we don't always get to see the full settlement terms.

 

[Devor]

No, I hear what you're saying and I understand. I'm not sure the 'potential' alone counts for much in court. It's an argument to present, but I don't know how effective it would be without some kind of evidence of the kind of harm you're talking about. Do you think the same arguments come into play in the other kind of aggregation sites I mentioned?

After this, it would be nice to see the Author's Guild case actually go all the way through the process, just to see how it comes out. Instead these things usually settle, and we don't always get to see the full settlement terms.

Probably with the ones that do music.

 

[Kevin O. McLaughlin]

Counter intuitive or not, Amazon and its competitors have pursued an aggressive strategy of offering relatively good royalties to attract a large volume of authors, hoping to amass the market economies that would make them the go-to place for books. If Google can preempt this with an algorithm, then listing your book has significantly less value and they will have every incentive to reduce royalties, especially for poor performers. They won't need the volume.

You're assuming Google can pre-empt that with an algorithm. But they can't, not necessarily anyway.

For example, you talked earlier about people whose books are exclusive on Amazon. So Google scans one and puts it up. It's now searchable, and will show up in Google searches. This doesn't breach the Amazon Select contract (the book is not for sale anywhere else). Google puts in a sales link for the book, maybe? Yes, and if it's available via the Google EBookstore, they might put that link in. If it's exclusive on Amazon, they'll put the Amazon link in (because they'll make 8% of the sale for every user who clicks through, thanks to the Amazon Affiliate program).

Posting excerpts of a book isn't illegal. Linking to someplace you can buy a book from those excerpts isn't illegal either. Now if they start posting entire books - or even enough of books that it might get some readers to just use the search and not buy the books - then there is a valid case for infringement. Otherwise? No, probably not.

 

[Steerpike]

Also, keep in mind as far as we know the plaintiffs are just bringing copyright claims. A lot of this other stuff isn't part of a copyright infringement claim, so it won't be relevant here. Under Fair Use, the court will consider the impact on the market for the original work, but they don't often go too far afield into speculative harms to the market for the work. Also, showing a speculative harm to Amazon is not the same as showing a harm to the market for the work, which is a broader question. Typically, they'll focus on whether what the accused infringer is doing is costing the copyright owner sales.

 

[Devor]

Also, keep in mind as far as we know the plaintiffs are just bringing copyright claims. A lot of this other stuff isn't part of a copyright infringement claim, so it won't be relevant here. Under Fair Use, the court will consider the impact on the market for the original work, but they don't often go too far afield into speculative harms to the market for the work. Also, showing a speculative harm to Amazon is not the same as showing a harm to the market for the work, which is a broader question. Typically, they'll focus on whether what the accused infringer is doing is costing the copyright owner sales.

Well, typically maybe. But there's no reason not to view Amazon as the customer, in which case it becomes pretty straight forward. My book is worth less to Amazon if they aren't paying for the network economies.

Also, the relevent element of fair use in New York, the jurisdiction I took b-law, is impact on "potential markets," and the sites I pulled up both talk about the need to extrapolate the impact as it becomes common practice. That means all of this speculation is relevant.

Let's remember there is no measure for how much is too much for Fair Use. Just as the entire work can sometimes be okay, an excerpt sometimes isn't.

Lastly, it's important to remember that Google is selling books, too. They're doing this because they want to sell more books, at low prices, while they make money on ads. The primary purpose for scanning excerpts is to outperform their competitors.

 

[Steerpike]

The Fair Use factors are the same everywhere. It is a matter of Federal Law and pre-empts State law on the issue. Where you get differences among the circuits is in the application of precedent from the Supreme Court.

"Potential markets" are a consideration in the Fair Use analysis. He, we're not talking about potential markets. The "harm" is what is speculative. That's something entirely different. The court looks at the harm to the market (including potential markets) for the work; if the harm is all supposition and speculation and a series of hypothetical happenings it's a tough sell.

 

[Mindfire]

I get the feeling that this action by Author's Guild is sort of a reaction to the digital age, eBooks, and the democratization of publishing in general. They don't like it and they're not sure what to do about it.

So why is the Author's Guild so anti-progress? Every time I hear something about them, it's that they're anti-digital and anti-change. I don't get it. You'd think the Author's Guild would be concerned with serving and benefiting AUTHORS (which the newly opened self-publishing avenues can definitely do) rather than bending the knee to traditional publishers. E-books have the potential to shift the balance of power away from publishers and toward authors, and the AUTHOR'S GUILD wants to kill it with fire? What? WHAT?

 

[Kevin O. McLaughlin]

So why is the Author's Guild so anti-progress? Every time I hear something about them, it's that they're anti-digital and anti-change. I don't get it. You'd think the Author's Guild would be concerned with serving and benefiting AUTHORS (which the newly opened self-publishing avenues can definitely do) rather than bending the knee to traditional publishers. E-books have the potential to shift the balance of power away from publishers and toward authors, and the AUTHOR'S GUILD wants to kill it with fire? What? WHAT?

You pretty much explained it yourself, Mindfire. And Konrath has gone over this far better than I could.

The AG is run by a bunch of old guard industry members, often highly paid bestselling writers (such as the Guild's president). They have ENORMOUS economic incentive to maintain the status quo, and zero incentive to "upset the applecart". In short, the AG supports what they believe is good for a handful of bestselling writers, regardless of the overall good to publishing, writing, or writers in general. If you scan their recent blog entries, specifically all the attack pieces they've run trying to get writers up in arms against Amazon (even encouraging writers to never link to Amazon on websites and other marketing!), the comment threads are exceptionally revealing: a host of negative, hostile, even angry comments from writers refuting the AG's position.

Unfortunately, groups like the AG are effectively writing themselves out of any significance in the future industry, by ticking off the majority of writers who are out in the trenches working today.

 

[Mindfire]

There needs to be some kind of underground or counterculture alternative to the Author's Guild. You know, an organization that actually exists to serve and support authors. You could call it "The REAL Author's Guild".