From the Wall Street Journal:
Last week publishers, copyright experts and other supporters filed amicus briefs petitioning the Supreme Court to hear the copyright-infringement case against Google brought by the Authors Guild. The court’s decision will determine how and whether the rights and livelihood of writers are protected in the future.
If you type, “Shall I compare thee to a summer’s day?” into Google’s search box, the text and author will be identified for you in a matter of seconds. This is not because Google has ranks of English majors waiting at the ready, but because, over a decade ago, Google made an agreement with a number of great libraries to make digital copies of every book they owned.
In 2004 Google sent its moving vans to the libraries and carted off some 20 million books. It copied them all, including books in copyright and books not covered by copyright. It asked no authors or publishers for permission, and it offered no compensation for their use—although in compensation to the libraries Google gave them digital copies of the scanned books.
The Authors Guild challenged what Google was doing in Authors Guild v. Google, the copyright-infringement case first brought in 2005 and recently decided on appeal to the Second U.S. Circuit Court of Appeals in New York. In October the court ruled that Google was protected by the doctrine of fair use when it copied the books—partly because it only made limited samples from copyright material available to the public, and partly because the court found that making the books available to an electronic search was “transformative.”
But the definition of transformative has always meant a new expressive use of material, as for creative purposes like satire—and digital copying is useful only if it changes nothing about the original. So this was an altered definition of fair use, a doctrine with four defining principles that have always also included the questions of whether the act will result in harm to the authors and whether or not the user’s intention is commercial.
Google is nothing if not commercial. This huge trove of published content is one reason Google’s search engine is so extraordinarily good and has helped Google become so profitable. Google has used these texts, without permission or compensation, for its own purposes. These include hidden internal processes, such as the deep enrichment of its own language database, for translation, search, reference, data mining, the development of algorithms, and other unidentified uses—as well as the highly visible ones, such as telling us that it’s Shakespeare who wrote that sonnet.
Google makes very commercial use of the material, but it claims that its book-search service is so beneficial to the public that the company shouldn’t have to pay their providers for the content.
It’s useful here to consider that Google reported revenue of nearly $75 billion in 2015. Last year, an Authors Guild survey on writers’ annual incomes since 2009 showed a 67% decline for authors with 15 or more years of experience. Most respondents, if they were to live only on their writing income, would be below the poverty line.
Accomplished writers are important to us. They provide the intellectual core of our culture, and as a society we need their work, their thoughts and their voices. We can’t allow their work to be taken without compensation by technology giants merely because these giants have the capability to do so.
It was to protect authors against exactly these risks that the Founders wrote copyright law into the Constitution—because a democracy needs authors who can support themselves in a free economy, without patronage or reliance on payment from special interests. If Google is allowed to take huge swaths of copyright material for its own commercial purposes, it will establish a precedent and open the gates to future property grabs.
Google claims that it would be “prohibitive” to pay the authors for using their work, but that’s not an acceptable response. Paying suppliers is simply a cost of doing business. It isn’t acceptable for one of the world’s richest companies to claim that it needn’t pay for content that plays such a crucial part in its financial success. Google depends on these texts to make its search engine one of the best in the world, and that superiority is what drives its ad revenues. Content draws traffic, and traffic drives ad revenues.
The Supreme Court has not taken up a case involving copyright’s fair use doctrine since 1994. The lower courts—applying old concepts to new facts—have created a tide that shifts compensation from the increasingly struggling creative sector to the affluent tech sector.
Beyond the law, this is an issue of morality. As Ralph Waldo Emerson said, “Civilization depends upon morality.” At least that’s what a Google search says he says.
Ms. Robinson is a novelist and the president of the Authors Guild in New York.