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Authors Guild Argues That Google Books Should Be Infringing Because Aaron Swartz

Now the case is back before the appeals court as the Authors Guild is insisting loudly that it's not fair use.

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The saga of the Authors Guild v. Google Books continues to make its way through the courts. This has been going on for years and years, and we don’t need to rehash all of the background, other than a few of the more recent situations. Last year, the case went to the 2nd Circuit appeals court, supposedly to discuss the Authors Guild’s desire to make its case into a class action lawsuit. However, the appeals court judges basically ignored that issue, and said it was meaningless since it seemed pretty clear that Google Books was fair use. Thus, it sent the case back to the lower court asking it to determine if Google Books is fair use. The argument is that, if it’s fair use, whether or not it’s a class action is moot. The lower court dutifully declared Google Books fair use a year ago.

Now the case is back before the appeals court as the Authors Guild is insisting loudly that it’s not fair use. Thankfully, the judges appear to be very, very skeptical. Perhaps this isn’t a surprise, since they were the ones who last year were so focused on the fair use point. It seems clear that Judge Pierre Leval — known for his support of fair use — wasn’t very interested in the Authors Guild bringing up false arguments that because Google makes money, Google Books can’t be fair use:

In his argument Wednesday, attorney Paul Smith quickly sought to differentiate the Guild’s case against Google from its unsuccessful HathiTrust case, citing Google’s commercial nature. But almost immediately, Judge Pierre Leval shut him down, telling Smith he would not succeed by arguing that Google’s commercial nature precluded fair use. Smith, however, pressed on, arguing that Google’s scanning deprived authors of a potential market to license books for search. Again, Leval pushed back, noting the transformative nature of the use is what mattered, not whether somebody might potentially pay to make that use.

Another summary, from Courthouse News, notes that Leval compared Google to the NY Times:

Leval warned that Smith “would lose” the case if his argument was premised on the fact that “Google, like The New York Times, is a profit-motivated enterprise.”

It makes no difference that, unlike Google, the Times stands to gain “dwindling, small profits” as opposed to Google’s billions, he added.

Leval also, thankfully, was pretty clear in rejecting the idea that just because publishers could find someone to license a work it means everything needs to be licensed:

Smith argued that Google’s business model prevented authors from licensing their books to companies like Microsoft, which he said was creating a licensed database before Google Books arrived.

“The test is not how transformative is the use,” Smith said. “The test is this the type of use that would be licensed.”

Strongly disagreeing with that point, Leval said. “You’d always find someone who would be willing to pay [a licensing fee] to avoid a lawsuit.”

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However, the craziest argument of all came from the Authors Guild’s lawyers in which they tried to point to Aaron Swartz as a reason why Google Books shouldn’t be fair use. The argument here is a bit convoluted: Google points out that it only shows snippets, not large swaths of scanned text. The Authors Guild then counters that maybe, just maybe, some enterprising hacker might figure out how to break into the backend and release all the text… because Aaron Swartz:

Google Books avoids copyright violations by only allowing users to read portions of books that match their searches, but the Authors Guild raised the possibility of hacker disseminating the digitized books in full.

Waxman emphasized that this has never happened in the history of Google Books.

In rebuttal, Smith said that he mentioned this concern in light of “an MIT student” distributing academic articles from a university database because he believed, “Information should be free.”

This is clearly a reference to Swartz, but it’s wrong in all sorts of ways (including that Swartz was never an MIT student). Swartz also never “distributed” those academic articles. He merely downloaded them. It’s unclear if he actually intended to distribute them or not. He also didn’t hack the system. He had full access to the articles he was downloading. And he didn’t do it because “information should be free.” As we’ve noted, that phrase tends to be a bogus strawman that copyright system supporters toss up to mock anyone who is in favor of fixing copyright law’s problems.

No matter what, it clearly has no relevance whatsoever to the case at hand and whether or not book scanning to create a searchable index is fair use. The Authors Guild has been flailing about wildly for a while, and dredging up Aaron Swartz just seems to show how ridiculously desperate it’s become.

Authors Guild Argues That Google Books Should Be Infringing Because Aaron Swartz

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