Songwriters, Playwrights Side With Authors Guild Against Google
- by Wendy Davis @wendyndavis, February 22, 2013
Organizations representing songwriters, illustrators, playwrights and other writers are asking a federal appeals court to uphold an order
allowing the Authors Guild to bring a class-action against Google for its book digitization project.
The groups say in a friend-of-the-court brief filed last week that a class-action
lawsuit is the only realistic means for many content creators to enforce their copyrights when their works are digitized without permission.
The organizations add that a ruling denying the
Authors Guild class-action status could "encourage technology providers to simply take first, and worry about the consequences later."
The coalition argues: "Without the ability to
aggregate their claims against infringing technology providers, [we] fear that the exclusive rights that the copyright act promises will be illusory to all except the largest and best-heeled copyright
owners."
The groups to join in the friend-of-the-court brief include the Dramatists Guild, National Writers' Union, Romance Writers of America, Society of Children’s Book Writers and
Illustrators, Songwriters Guild of America, and the Text and Academic Authors Association.
They are asking the 2nd Circuit Court of Appeals to uphold an order entered last year by U.S.
Circuit Court Judge Denny Chin, who rejected Google's contention that copyright infringement requires case-by-case evaluation.
The dispute dates to 2005, when the Authors Guild sued Google
for digitizing library books and displaying snippets of them in response to search queries. Last year, Chin certified the Authors Guild's lawsuit as a class-action, ruling that it would be unfair to
require authors to bring individual cases.
Google is appealing that ruling to the 2nd Circuit. The company argues that a class-action isn't appropriate because the Authors Guild and its
members have conflicting interests. Google says that many writers approve of its decision to scan millions of books from public libraries and make them searchable. The search company also says that
the case presents fair use issues that require individual assessment.
But the coalition to weigh in against Google says the company is wrong on both counts, arguing that Google's theory
"rips from all individual authors the ability to join together and combat massive, systematic, and centralized infringement."
The coalition also discounts arguments by a group of
professors, who weighed in on Google's side. "No doubt Napster users (and occasionally artists) may have benefitted from having access to or promotion of a variety of songs and sound recordings, but
that fact neither shielded Napster from infringement nor aggregate liability," the coalition says in its brief.
Another group of academics led by Professor Pamela Samuelson had earlier entered the case as amici supporting the position advocated by Google. This group of predominantly tenured faculty had taken the position that their interests were not being adequately represented by the class of authors assembled and led by the Authors Guild.
The AG class was challenging Google’s right to unilaterally scan millions of books into a massive digital database to be controlled and exploited by Google without regard to the wishes of the copyright owners of those books. The group led by Professor Samuelson took the position that, as scholars, they were interested first and foremost in the widest possible dissemination of their works and, accordingly, their interest in seeing Google proceed with its plan was at odds with the position being advocated by the AG class.
TAA believes, first and foremost, that Google’s commercial mass digitization project is not defensible as a fair use, that instead the Google project requires consent from and fair compensation to the copyright owners of the works selected by Google for inclusion. Importantly, TAA is not opposed to the creation of a widely accessible digital library – it just believes that those who have contributed the content for that library are entitled to ask for fair compensation for its inclusion. TAA understands that because the interests of the copyright owners, considered individually, are too small to litigate, the only viable mechanism for seeking redress is through the certification of a class. Indeed, the district court acknowledged that it would be unfair to allow Google to engage in an indiscriminate en mass scanning process while at the same time requiring the copyright owners to press their claims one by one.
In contrast to the position advocated by the Samuelson group, TAA believes that its members (TAA is the only membership association dedicated solely to furthering the interests of authors of scholarly books, textbooks, and journal articles) by and large are not interested in ceding to Google a blanket, royalty-free license to exploit their copyrighted works. TAA believes that the interests expressed by the Samuelson group are not representative of the majority of scholarly book authors or textbook authors. TAA further recognizes that by taking a position protecting the rights of copyright owners it can preserve simultaneously the opportunity for all of its members to pursue their individual interests – both those who wish to maintain control over, and selectively license, their works as well as those who may ultimately choose to acquiesce in Google’s plan. To adopt the position advocated by the Samuelson group would be to advance the interests of the latter at the expense and sacrifice of the interests of the former.