On November 14, Judge Denny Chin dismissed the long-running Authors Guild suit against Google, ruling that the digitization of books for Google Book Search is fair use. In the ruling, Chin lauded the benefits that Google Books provides, and implicitly upbraided the Authors Guild for taking the case so far.

Left unremarked upon by Chin was the judge’s own role in drawing out events by permitting the class action to fester for years, only to be pointedly reminded by his peers on the Appeals Court in July of this year, that, yes, the case was about copyright after all. Apparently, the Department of Justice’s determination that the parties’ amended settlement proposal offered back in 2009 was still a “bridge too far” wasn’t a big enough hint.

Not so easily deflected, the Authors Guild immediately announced its intention to file an appeal of Chin’s decision. Continuing the legal battle at this point seems ludicrous. The publishers, who had also sued Google in 2005, saw the light more than a year ago and agreed to drop their suit after a settlement. And I agree with Brandon Butler, practitioner-in-residence at the American University’s Washington College of Law, writing at the ARL Policy Blog: the guild would better serve its constituents by picking more useful crusades.

Priorities?

It is hard to understand what the Authors Guild hopes to achieve by continuing the litigation. In a dramatically changing landscape where authors can now easily self-publish, bypassing existing publishing houses, yet where a new ecosystem supporting the creative arts does not wholly exist, can the guild not find more pressing needs on which to spend its time and resources than the digitization of out-of-print library books?

Surely the Authors Guild leadership must realize that the world of authorship is changing; that powerful new digital tools are enabling 10-year-old kids to create viral song covers and videos on their tablets and phones, and that traditional-length fiction could easily become the LPs of the 21st century. The guild also must know that in this new digital world, reader expectations have evolved, and readers now and in the future expect interaction.

But so intractable was the guild’s opposition that rather than try to resolve the differences constructively and move on to more important subjects, the guild doubled down on its litigious approach. In 2011, it launched a second lawsuit over book scanning, this one against a group of Google’s university library partners, Authors Guild v. HathiTrust.

That case allowed Judge Harold Baer to beat Chin to the punch, delivering a decisive fair use ruling more than a year ago, in which Baer called the HathiTrust program an “invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].”

Not embracing an opportunity to help architect new creative paths for a new world of authors strikes me as a dereliction of duty by the guild’s leaders. But perhaps more troubling: when did the Authors Guild become so focused on authors’ copyrights that it lost any sense of reciprocal obligation to the larger society in which they labor?

The Authors Guild lawsuits have from the very beginning been motivated by ideological passion. But in fact, the Authors Guild never truly represented the scholarly books and authors contained in the research library collections scanned by Google. The vast majority of the authors in the Google Book Search database aren’t the sportswriters or novelists of its membership. As Chin noted in his ruling, 93% of the books scanned for Google’s database are nonfiction works, mostly by academic authors.

Win/Loss

For cultural institutions, the fair use ruling by Chin is a significant win. But let’s also recognize that a great deal of time and organizational diversity has been lost along the way, forsaken on the altar of the legal system.

When Google first started digitizing library books, most cultural heritage institutions cheered the galvanic chutzpah of its vision despite concerns about the contractual fences Google had put around the resulting scans. At the time, I was a technology director at a large university system’s digital library, where most of us were still struggling to digitize limited special collections, grappling with what seemed insurmountable costs and logistical challenges. Google knocked a huge hole in the wall that let sunlight pour into the dark corners of our libraries.

Much of that goodwill was interred, however, when Google, the publishers, and the Authors Guild announced in 2008 the establishment of an ill fated class action settlement. Clearly, Google was working in its own interests, trying to reach terms with the Authors Guild and trade publishers that would avoid the kind of lengthy litigation around fair use that it wound up enduring (and winning) anyway.

Eight years later, Google now stands alone with an unparalleled digital collection of the world’s literature. And as legal scholar Eric Goldman suggested in Forbes, Google has entrenched its search market leadership by winding up as the sole possessor of more than just a trove of old library books, rather it has acquired a distillation of knowledge.

About four years ago, I provided an in-person presentation to the Department of Justice on the value to Google of latent semantic analysis, using digitized texts to enrich the capabilities of its search engine by creating a database of terms, language expressions, and translation correspondences. As a result of Chin’s fair use determination, much of this new knowledge and improved new research tools can finally be made available.

Yet for years, because of the fear and loathing created by the settlement proposal, no commercial or cultural organization dared to advance the frontiers of fair use for digitized books. And as Goldman concurred, after the lengthy, costly court battle, it’s unlikely now that anyone ever will do so again on this scale. I don’t believe that Google sought to obtain a competitive gap in our digital landscape by using this exhaustive litigation as a bulwark. On the other hand, I don’t believe Google was ignorant of that beneficent side effect, either.

Ultimately, we are fortunate that Google did not merely engineer this database but also permitted a partial recapitulation of this trove of knowledge through its partnership with university libraries via the HathiTrust. Still, because of the litigation, the world lacks what otherwise might have come to pass through competing private/public partnerships: multiple digital libraries of the world’s literature, providing not just a useful rivalry for international cultural services, but competition in computer science investigations, digitization and scanning, optimizing metadata integration for discovery algorithms, and archival diversity.

Useful Arts

For me, and I suspect many others, Google has evolved over the years from a kind of messianic leader to evil sorcerer, then great White Knight. But my opinions and impressions are truly mine. Google acted of its own accord, in its own interests, as did the Authors Guild and the publishers when they decided to launch a copyright crusade. No good was ever likely to come from such a litigious path, except, perhaps, the useful lesson that fair use cannot be dispelled by class action incantations. And in the end, much was lost in terms of time and resources.

Google Books is an important advance. Each book scanned by Google still must stand alone. But as Chin has ruled, the previously unforeseen assembly of these titles into a massive, searchable, digital database mightily advances the “useful arts” as envisioned by our copyright laws. For this, I applaud Google, the libraries that were its partners, and all the many legal interventionists who in the end stood in defense of authors, readers, and a better world. And I regret that the Authors Guild is apparently still not among them.