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Fisking the Authors Guild

20 October 2015

From Joe Konrath:

The Authors Guild just lost one of their ongoing cases against Google. The Guild have been whining that Google’s Book Scan–a service meant to digitally scan every book so the entire world could gain searchable Internet access to all of that info–is in fact violating copyright and stealing from authors.

Hey, Authors Guild! Why not also charge readers a fee every time they recommend a book via word of mouth?

. . . .

The Authors Guild has lost similar battles. During Authors Guild vs. Bill Smopey, they sued him because he’d sat in a Barnes & Nobel and read half of The Terror by Dan Simmons but hadn’t bought it. Smopey’s defense, “After the first 500 pages, the monster wasn’t even in it anymore, and I got bored and put it back.” The Guild claimed that Smopey owed Simmons’s publisher half of the cover price for reading without paying, and for partially crinkling page 342. The court dismissed the case.

During Authors Guild vs. Janet’s Mother, they sued because Janet bought a full price hardcover of Stephen King’s The Cell, then loaned it to her mother to read. The Guild demanded Janet’s Mother pay Stephen King a royalty, because she had no right to read what she hadn’t bought for herself. Janet’s Mother’s legal team dazzled with the famous, “Well, what about libraries?!” defense and the suit was dropped.

. . . .

The Guild recently remarked on their latest loss, to follow. Them in unreasonable bold italic font. I replied in sensible plain font.

Today, the Second Circuit Court of Appeals released its decision in Authors Guild v. Google. “The Authors Guild is disappointed that the Court has failed to reverse the District Court’s faulty interpretation of the fair use doctrine,” said Mary Rasenberger, Executive Director of the Authors Guild in New York. 

Apparently making all books discoverable on the Internet, which would not only add to the collective knowledge of the world, but help interested parties find the right books to buy, wasn’t fair use. That it would help people find more books to buy seems lost in the fear that people would rather surf the internet and piece together a book random page by random page at great frustration and time cost to get a maximum of 16% of the full title, out of order no less. We all love reading like that, don’t we?

“America owes its thriving literary culture to copyright protection. 

Actually, America owes its thriving literary culture to writers who are compelled to create. Copyright doesn’t ensure a writer makes money. Readers do. And if the readers can’t find the writer because–let’s take a wild leap here–the writer’s work isn’t searchable on the world’s biggest search engine, then copyright isn’t going to put one cent in that writer’s pocket.

. . . .

It’s unfortunate that a Court as well-respected as the Second Circuit does not see the damaging effect that uses such as Google’s can have on authors’ potential income.

Yeah, damaging. Someone Googles a topic, and it leads to a free except of my book. Every author wants people to browse a bookstore and find their book among the thousands of others. But to be able to do this online, 24/7? That’s stealing.

There are many ways to read a book without compensating the authors. Buy used. Go to a library. Borrow from a friend. Steal online. Use a paperback exchange. Read fan fic.

Authors shouldn’t fear being read. Being read will eventually lead to getting paid. Authors should be worrying about not being read, because readers don’t know they exist. Google Book Scan wants to show the world books that the world hasn’t ever seen before. The Authors Guild wants to micromanage this boon to authors and readers by collecting royalties.

Can someone call Mary Rasenberger on her landline, or if that’s too technologically advanced for her, send her a telegram, and let her know the rest of us are living in 2015.

Link to the rest at Joe Konrath and thanks to Ava and others for the tip.

Here’s a link to Joe Konrath’s books. If you like what an author has written, you can show your appreciation by checking out their books.

Copyright/Intellectual Property, Joe Konrath

21 Comments to “Fisking the Authors Guild”

  1. I really like the way the 2nd Circuit dealt with this case. You can read their entire opinion here: https://assets.documentcloud.org/documents/2461545/agvgoogle.pdf

    When it comes to fair use, there’s a four factor test. The 2nd Circuit gives it as follows:

    “Section 107, in its present form, provides:
    [T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news
    reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a
    commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted
    work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted
    The fact that a work is unpublished shall not itself bar a finding of fair use if such
    finding is made upon consideration of all the above factors.”

    The Supreme Court has designated fair use an affirmative defense, which means the burden was on Google to prove the four requirements. Not only that, the 2nd Circuit also noted that “the Supreme Court’s assertion in dictum in Sony Corporation of America v. Universal City Studios, Inc, [is] that “every commercial use of copyrighted material is presumptively . . . unfair.” 464 U.S. 417, 451 (1984).”” With the odds stacked against them like that, Google won in the district court on summary judgment and the 2nd Circuit affirmed. There’s a lengthy discussion of the four factors in the 2nd Circuit’s opinion applying them to this case. It’s worth reading if you’re bored or a law nerd. I also love this little gem towards the beginning “[t]hus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”

    • [W]hile authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

      That is the essential difference between American copyright law and French copyright law.

      To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

      Under the US Constitution, the implied principal beneficiary of copyright is the public. The stated secondary beneficiary is the author.

      Under whatever passes for the supreme law of the land in France this week, the principal beneficiary of copyright is the author.

      No one can reconcile these two position. This is the reason I believe the US should withdraw from the Berne Convention.

      A long term of copyright is consonant with the French position. It is disconsonant with the American position.

      The French ask ‘How long can we make copyright protection last?’

      The Americans (should) ask ‘How short can we give copyright protection and still promote the useful Arts?’

      • The Americans (should) ask ‘How short can we give copyright protection and still promote the useful Arts?’

        There is probably a range of copyright terms that deliver some benefit. I’d suggest a copyright term that delivers the maximum benefit to consumers is best. There’s no reason to presume the shortest term that delivers some benefit is the ideal.

        In keeping with the idea of benefit to the public, we might question how much benefit the public derives from letting one author use another author’s creations to make a buck. That path seems designed to benefit authors.

  2. Someone please tell me that Konrath was just kidding about the Author’s Guild vs. Janet’s Mother. It was a joke, right?

  3. I’m pretty sure “fisking” is Norwegian for “gutting a half-dead fish.” That or “shooting fish in a barrel.” The Author’s Guild is such an easy target. Not nearly worthy of Joe’s talents. (Though perhaps deserving!)

    • fisk (v. transitive)
      The term refers to Robert Fisk, a journalist who wrote some rather foolish anti-war stuff, and who in particular wrote a story in which he (1) recounted how he was beaten by some anti-American Afghan refugees, and (2) thought they were morally right for doing so. Hence many pro-war blogs — most famously, InstaPundit — often use the term “Fisking” figuratively to mean a thorough and forceful verbal beating of an anti-war, possibly anti-American, commentator who has richly earned this figurative beating through his words. Good Fisking tends to be (or at least aim to be) quite logical, and often quotes the other article in detail, interspersing criticisms with the original article’s text.

      • As a fringe benefit, since it starts with the letter “f” and ends with the letter “k,” it looks like a polite-company bowdlerization of a certain other word. 🙂

        • Ah, I’m still going to think of it as “ripping their guts out and leaving a husk behind”! More fun, and kind of accurate!

    • It was a big thing in the post-9/11 days, and for several years after. I haven’t fisked anyone for years, though. I prefer the snark-and-run instead.

  4. I honestly think we owe the Authors Guild our sincere gratitude for being so lousy at pushing for publishers’ rights. If it weren’t for them, it’s possible our digital landscape now might look very different.

    • On the author hand if they were looking out for author interests instead of publisher interests we wouldn’t need to worry about what other stupid idea they are lining up to push.

  5. This suit makes about as much sense as those newspapers wanting Google to pay for for putting snippets of their articles in search results. If I recall correctly, didn’t Google simply offer to cull those papers from search results?

    Free discoverability? How dare they???

  6. I’m curious how Authors Guild thinks Google’s 16% access is worse than Amazon and other stores’ 15% previews. The Google pages are not continuous, so it’s like leafing through a book in a bookstore, rather than like sitting down and reading the first few chapters…

    Google can be very high-handed and their metadata often fails to mention the library where they found the book. This is sometimes a largish point, since libraries heroically preserve books over long periods of time. Apart from that, it’s a very useful research tool, but not at all a useful reading alternative. In my experience, their respect for copyright is too great sometimes. I’ve been frustrated by my inability to lay my hands on a copy of a book that has been out of print for more than 100 years. But never frustrated by a lack of access to bestselling potboilers.

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