This is one of those areas where copyright law has me scratching my head. Google allows works to be searched. This means increased exposure for the works and hence potential increases in sales.
The guild is seeking the minimum $750 in copyright damages per each allegedly infringing work — making it potentially among the highest copyright damages cases in litigation history.
The Authors Guild is right to seek some kind of understanding but choking off a useful way for people to discover new works — advertising funded or not — strikes me as shortsighted at best. There is no competing service here that Google is undercutting.
The Wired.com article notes that Google is citing the doctrine of “fair-use” to publish portions of each work. This seems like the wrong way to go about it. As I understand fair-use there’s a transformative or educational function which is certainly what the works are being used for, but Google’s use is what is at stake here:
Google’s unauthorized uses are for a commercial purpose; involve verbatim copying, distribution, and display of protected expression; are not ‘transformative’; and, if they became widespread, would adversely affect actual and potential markets for copyrighted books…
Its the last part of that passage that grates: would adversely affect actual and potential markets for copyrighted books … this speaks precisely to the article I posted last week about the difficulties of establishing the “value” of intellectual property. Potential markets are not actual markets. It is arguable that Google is creating new potential markets that the Authors Guild had no intention of creating or had even dreamed of tapping.
It seems to me that a temporary fix that would address the plaintiff’s claims would be to order Google to suspend advertising on Google Book searches until a satisfactory settlement can be reached — since the court already killed one settlement in this case it seems, to a layman such as myself, that there is a responsibility on the part of the court to shepherd a new settlement into being while minimizing the disruption of an obviously useful public service.
(Disclaimer: as an academic, the Google Book search has proven itself invaluable to me for the purposes of discovering new sources of information).