googleOn Publishers Weekly, Andrew Albanese has a post-mortem looking at the overall effects of the recent Supreme Court decision not to hear the Google Books copyright case. Albanese makes some cogent observations about each affected party or principle in turn, suggesting that the case has gone on for so long by now that not much actually changed with the decision to let the lower-court ruling stand.

The Authors Guild didn’t lose anything that it actually already had. There is no evidence that its members have suffered any actual harm from the book scanning that’s gone on for over a decade now. The majority of books that were scanned are academic works not written by Authors Guild authors, and many of those are orphan works for whom no rights holder can be located. All the Guild really lost was a potential market for licensing online search rights for their books—which US copyright law wouldn’t have granted them anyway.

By the same token, Google didn’t gain much that it didn’t already have, except perhaps peace of mind. It’s already scanned over 20 million books, and is in the process of winding down the whole project. Indeed, between litigation costs and the costs of the program, Google Books has probably been a money loser for Google on the whole. And as Albanese points out:

Those suspicious of Google may still wonder what the company might eventually do with a corpus of scanned out-of-print books—and remember, Google does not sell ads against books scanned through the library program. But perhaps the most troubling answer to that question is: nothing. Because one has to wonder what good things might have happened if the two sides in this litigation had come together in a less adversarial way.

It’s a good point. If the Authors Guild hadn’t tied the program up in litigation, and made it a losing proposition for anyone who didn’t have Google’s deep pockets to risk litigation by launching their own bulk scanning program, Google might have competitors in the book-search market, just as it has myriad competitors in the web-search market. But given that the litigation dragged on for so long, Google now has a ten-year head-start over any potential competition.

And given that the precedent permitting Google Books-style scanning and indexing only holds in the part of the country covered by the Second Circuit, anyone located outside of that region has to know that the Authors Guild will swoop right down on them if they try to start such a program, in the hope of getting a different ruling at the appeals court level that will create a circuit split, provoking the Supreme Court to take the case that time. So there are still plenty of potential legal expenses in the future of anyone who wants to follow in Google’s footsteps.

Finally, there’s the question of how the ruling affects copyright overall. For all that the precedent only holds in the Second Circuit, it’s still sufficient to provoke optimism in people who want to create their own search-index databases—including for types of media not covered by the Authors Guild itself. But at the same time, policy makers are taking note of these decisions, and content-publishing interests with well-funded lobbyists are also paying attention. There’s plenty of governmental talk going on about issues like digital first sale and DMCA exemption and safe-harbor reform, and the new Library of Congress nominee has pledged to pay attention to digital issues in reforming the Copyright Office.

Whether new legislation will undo the effects of the Google Books decision or swing further in favor of applying principles like fair use and first sale to digital media as well as print remains to be seen. But law professor James Grimmelmann points out that, by fighting this battle through to four important fair use decisions (two for Google Books and two for its partner HathiTrust), the Authors Guild has significantly strengthened current legal protections for fair use.

This, in turn, reminds me of something I said back in October—we really do owe the Authors Guild a debt of thanks for picking such terrible positions in important legal battles, then losing them so badly. Maybe we should try to get them to come out in favor of DRM next. With any luck, it might result in all publishers everywhere deciding to stop using it.


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