Google and massive copyright infringement

Google has commenced a program intended to make more books available on-line, in a free digital format. As an author, I have intensely mixed feelings about this program. On one hand, anything that promotes the further distribution of books or which in any way spreads the word about my work is potentially a good thing. Likewise, I wholeheartedly support the idea of making public domain works available for free in a digital format. Everyone wins there, and no authors are hurt since their entitlement to royalties expired long ago. However, as a lawyer, there is little doubt in my mind that that portion of this program that deals with works that are still subject to protection constitutes copyright infringement on a massive scale.

In this program, Google has decided to disregard the wishes of both publishers and authors by making their works available on-line for free. Here is a link to an article about this program. In order to strong arm publishers into participating, those who agree will have a “buy this book” link placed on the listing for that book. Those who don’t agree, won’t have that link included. The intent is obvious, and it’s a none-too-subtle effort to compel publishers to participate. In order to get around the problem of uncooperative publishers, Google has entered into agreements with three major university libraries to use their collections as the fodder for their scanning efforts.

Google claims that it will permit authors or publishers to opt out of its program. “We think most publishers and authors will choose to participate in the publisher program in order (to) introduce their work to countless readers around the world. But we know that not everyone agrees, and we want to do our best to respect their views too,” said the director of the program.

In my mind, there is no question that that is copyright infringement. Earlier this year, the United States Supreme Court handed down its decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. In Grokster, the Court addressed a challenge to the system of downloadable file-sharing of copyrighted music and film files on a peer-to-peer network. These ubiquitous networks have led to a proliferation of copyright infringement by permitting the distribution of copyrighted material for free. In short, the complaint against Grokster and its kind is that the copyrighted material is distributed for free, with no compensation to either the artist of the record company.

The U. S. Supreme Court found that “the unlawful objective is unmistakable,” and held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U.S. at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.”

In my mind, what Google is proposing to do is absolutely no different from what Grokster and Napster did. It is not only inducing copyright infringement, it is actively encouraging and promoting it. It is a gross violation of my intellectual property rights, and the intellectual property rights of every other author who has poured his or her blood, sweat, and tears into their work. Nobody asked my permission, and if they had, I would say no.

I think that the most I have ever made in a year from the sale of my books is about $5,000. Clearly, that’s not enough to live on, and it probably doesn’t even cover what I spend per year on researching and gathering materials for my various projects. In short, it’s an awfully good thing that I don’t rely on my writing to make a living, because if I did, I would be living in a cardboard box somewhere. Given the fact that I make so little, and given the fact that I don’t do this purely out of altruism, it should not be much of a surprise that I wouldn’t support such a policy or program. In fact, I have specifically instructed at least one of my publishers to opt my works out of this program.

I was very pleased to see that the Authors Guild has commenced a class action copyright infringement suit against Google to enjoin this massive and arrogant flouting of my intellectual property rights. Here is an article about it. I wholeheartedly support this suit, and intend to take steps to join the class.

I appreciate everyone who buys my books. I fully understand and appreciate the fact that you have chosen to spend your hard-earned money on my work and that you could have spent that money on something else instead. That is both humbling and flattering to me, and I greatly appreciate it every time that it happens. I also appreciate the fact that my work can be checked out of a library. The library purchased that book. What I cannot and will not abide is the idea that the fruits of my labors can be stolen and given away for free with alacrity.

Thank you for your support.