In this column, I will address four questions: Should this suit be certified as a class action? What should Google's position be on class certification? (We know the plaintiffs position: They want it.) Who's likely to win this suit? And, assuming the suit is certified as a class action, should individual authors opt in, or opt out?...A class action will mean that if the Authors Guild wins, Google simply can't go forward. The damages would be too great, and an injunction could be very broad. So it would be a complete win for the Guild. Conversely, if Google wins, it won't have to contend with numerous duplicative suits by individual authors across the country - the legal equivalent of death by a thousand cuts. And that would be a complete win for Google....On the whole, I think Google's use of a book should be deemed fair use. And, most likely, it will be....[T]aking a small chunk doesn't usually interfere with the market for the whole. In general, that will be true for Google's project, too: Its search function seems more likely to be used to find books, than to moot the need for their purchase....[Even for non-fiction books,] Google, then, is more likely to enable new research, rather than displacing the income stream to nonfiction authors from old research....For all these reasons, I'd deem Google's "fair use" argument the likely winner here. Surely, technical copying is going on here - in the form of the scanning of the book. But the point of copyright law isn't to protect against copying, it's to protect against harm to the value of intellectual property. And it seems that Google's project is likely to inflict little of that latter type of harm....As an author myself (and, incidentally, a one-time Author's Guild member) I feel very conflicted about this lawsuit. But I've decided I'll opt out of the class action, if this suit becomes a class action (or decline to opt in, as the case may be). In other words, I won't take Google's money for this use, no matter what. Besides being a writer, I'm also a strong free speech advocate, and Google's project may well help free speech more than it hurts it. I want to see the advance of human knowledge much more than I want to get paid for making my books searchable. The fact that they might become searchable, to me, is a welcome surprise.
Posted by
Peter Suber at 9/30/2005 10:15:00 AM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
