I agree with James Grimmelmann that the Google Books decision is a bit anticlimactic (although the appeal has the potential to add suspense by bringing the case back from the dead). After last October’s decision in Authors Guild v. Hathitrust, the only question really was whether Judge Chin would distinguish HathiTrust on the grounds that the defendants there were nonprofit institutions of higher education, while the defendant here was a commercial entity. To be sure, Judge Chin was not bound by Judge Baer’s analysis that HathiTrust’s use was transformative and did not in any way harm the market for the works at issue, but these holdings were so consistent with precedent in the Second and Ninth Circuit that it was hard to imagine that Judge Chin would disagree with them. That left the commercial/non-commercial distinction, which has become far less significant in recent years in cases involving transformative uses.
Both judges’ recognition of the enormous social utility of creating a searchable index of books, and the absence of harm to authors caused by such an index (to the contrary, the index benefits authors by making their works more discoverable), highlights the mystery at the heart of these cases: What is the Authors Guild fighting for? Why did it not settle last year, when the publishers dropped their suit against Google? Why did it continue to pursue its litigation against HathiTrust after HathiTrust abandoned its orphan works project?
For some Authors Guild members, it might be about the money. They may believe that there is a pot of gold at the end of the Google rainbow. If the Internet could make instant millionaires (if not billionaires) out of all these kids who express themselves through Internet acronyms, emoticons, and 140 character tweets, then surely authors who spend years writing finely crafted books deserve a share of that fortune.
For others, it seems to be a matter of principle. But exactly what principle? Apparently, that no one should use their works without their permission. While they may agree with fair use in the abstract, they oppose it as applied to their works. The fact that the use is socially beneficial and does not harm them economically is irrelevant. I would amend James’s “three c” formulation with a fourth c: creators should have complete control over copies.
The Authors Guild’s belief in complete control is based more on the Continental “author’s rights” (droit d’auteur) tradition than on the Anglo-American utilitarian tradition. In the author’s rights approach, copyright springs not from statutes but from natural law. The relationship between the author and his work is intimate and indivisible. By contrast, in the Anglo-American system, copyright is not a response to natural law, but rather is a matter of legislative choice directed at incentivizing the creation of works for the benefit of society. The Anglo-American utilitarian approach in theory provides only as much protection as is necessary to encourage creative activity, while the author’s rights approach provides more robust protections of both economic rights and moral rights such as the right of attribution and integrity. Historically, the difference between the two approaches translated into longer copyright terms and narrower exceptions in author’s rights jurisdictions.
However, in response to lobbying by rights-holders, Congress has enacted certain features of author’s rights systems — for example, the ever-increasing copyright term. The first U.S. copyright act provided a term of 14 years, renewable for another 14 years, for a total of 28 years. Now, the copyright term matches the European Union’s term of life of the author plus 70 years.
Efforts are underway to import other author’s rights features. The U.S. Copyright Office just released a report recommending that Congress consider adoption of a resale royalty (droit de suite) for visual artists. Under this framework, a visual artist would receive a percentage of the amount paid for a work each time it was resold by a third party. A resale royalty is in effect a tax on the sale of copyright products and is directly contrary to the long-established first sale doctrine.
The complete control over copyrighted works sought by the Authors Guild and reflected by proposals such a resale royalty are inconsistent with the public interest purpose of our copyright system. Fortunately, Judge Chin, and Judge Baer before him, recognized that the objective of copyright is not to enrich rights-holders, but “to advance the progress of the arts and sciences.”