26 October 2005

Author's Guild v. Google (tangent) Who's on Trial?

A few days back, Professor Goldman remarked via e-mail:

[A]ny thoughts why the Author's Guild didn't sue the libraries for contributory/vicarious infringement?

Although I think neither of these will get any real attention, I think there are two reasons:

  1. Libraries form the single largest category of book buyers. Rightly or (mostly) wrongly, the AG doesn't want to piss off the American Library Association. Of course, this also reflects some real, umm, less than perceptive reasoning by the AG's counsel… because public libraries (that purchase the kinds of books written by AG members in profusion) fight almost as much with university libraries (which don't) as they do with the censorship movement.
  2. Tactics (that I disagree with). Basically, the AG's lawyers don't want the PR battle of appearing to attack libraries.

Neither of these reasons is substantive. The closest substantive reason that bears any consideration is the theory that perhaps the libraries are doing nothing more than making materials available to a "customer" for the "customer" to do things for which the library itself is not liable under § 108(g) and the corresponding regulations. I don't think it's a winning argument—but it's certainly good enough to get past a motion to dismiss, and probably even summary judgment. Then, in front of a trier of fact (whether judge or jury), we're back to the "perception of attacking libraries" issue again.

All of this leads back to one of my earlier observations: Both sides need to win both the public relations and the judicial "trials" of this matter. Neither can afford to win one and lose the other, because the loss would be far more crippling than the victory would be enabling. For example, let's say that Google wins in court, but loses the publicity fight.

  • That leaves Google with a judicial finding of dubious reach and no damages to pay or injunction to obey, but with a serious image problem—and on the Internet, even more than in physical commerce, image counts for probably more than the quality and price of the product in question. Further, the content-provider lobbyists will probably line up a few Congresscreatures to amend the Copyright Act to reverse the victory.
  • A loss in court for the AG will cripple its ability to bring actions for years to come (leaving aside the loss of money, which would be nontrivial just from attorney's fees).

The inverse case is no better. If the AG wins in court but loses the publicity fight,

  • That leaves the AG with a difficult-or-impossible-to-enforce injunction, an almost certain Supreme Court battle, and a Congress ready to amend the Copyright Act to avoid squelching Internet commerce (a potential source of tax revenue).
  • Conversely, it leaves Google sort of holding the bag with a Pyrrhic victory—it has defended its image, but can't do what it was trying to do. Meanwhile, the OCA, and Microsoft, have come in and undercut its efforts.

Either way, the results aren't very pretty, nor very good for anybody. That's not just the participants—it's also those who might want to use the system: library patrons; scholars; those seeking just to verify a quotation; geneologists; students; book-buyers trying to find the exact title of a book fondly, but hazily, recalled from years past.

In short, the AG has set itself up in an all-or-nothing situation with contours that make a settlement of any kind short of capitulation by either side virtually impossible. It's not in Google's interest to settle with the AG only, because it will still have to fight the AAP; it's not in the AG's interest to settle with Google, because what it really needs/wants here is the precedent (even more than the injunction itself).