Tuesday, November 19, 2013

sinking to conclusions - logical quicksand in the latest Google book scanning decision

Here is all you need to know about why The Authors Guild will appeal the latest Google book scanning ruling* and why, I believe, the AG will likely win on appeal.

I call it... logic.

Faulty Syllogism
Copying books you own is fair use.
Libraries owned the books Google copied.
Google's use is fair.
Frankly, I'm not convinced the first premise is always true but even if you accept as true the idea libraries themselves are allowed to make a full text copy of each one of the physical books in their collections, that makes logical room for only one electronic file of the scan. Google retained at least one other file for itself after each scan, despite owning none of the books. The conclusion above does not follow.

The False Dilemma

The Google "win" in the US District Court (Southern District of New York) is being celebrated by digital supremacists as somehow saving the project of Google's universal online library, what the court ruling has called "an essential research tool." Apparently, then, if Google were not allowed to scan and display (in snippet form) without permission or payment the millions of copyright-protected books they have already scanned and displayed, we would all be stuck back in the bad old analog library days without our new "essential" tool.

Yet authors are not asking for Google Books to be destroyed. We are asking for Google to adjust how they do their business.

The objections by authors to Google's project have nothing to do with not wanting book preservation, an online library, a textual search tool, a textual pattern recognizer, or expanded access to books for under-served populations (all benefits listed in the ruling). Rather, what authors object to is the building of all those wonderful tools without permission or payment. Permission and payment are prerequisites for any and all other library collections (throughout the history of humankind). Why does Google get a pass?

Authors can be asked for permission AND be paid for their work AND Google can have its for-profit library. These things do not exclude each other. The suggestion that Google Books would cease to exist if it can't be done under the banner of fair use is a classic false dilemma. According to court documents, Google reported $36.5 billion in advertising revenues for 2011. The Authors Guild action claims $3 billion as compensation for infringements. Ruling against Google, therefore, would not eliminate their project. It would mean, simply, that Google needs to devote 8% of their advertising revenue (from one year) to paying for the content they have been monetizing for their own profit for close to a decade.

Denying the Antecedent/Confirmation Bias
"Google does not sell the scans it has made of books for Google Books; it does not sell the snippets that it displays; and it does not run ads on the About the Book pages that contain snippets. It does not engage in the direct commercialization of copyrighted works."
The final conclusion in that logic-like construction from the district court ruling - that Google somehow does not engage in direct commercialization of copyrighted works - can be reached only by ignoring the very heart of the activity in the book scanning project. Google sells book scanning services AND the products of those services (scanned books) to the libraries from whose collections the physical books have come. The way Google gets paid for these services is by keeping scans of each book for their own commercial purposes (Google's business is search; search requires content; books are content). How much more direct does their commercialization need to be?

post hoc ergo propter hoc
"Words in books are being used in a way they have not been used before. Google books has created something new in the use of book text - the frequency of words and trends in their usage provide substantive information."
The conclusion that Google is responsible for a new way of dealing with text is simply fallacious. It is indeed a wonderful thing that lots of folks can use a service like Google Books to perform textual analysis and lexical frequency testing, but these "new" practices are in no way the result of Google's book scanning deal with libraries. My own Master of Arts thesis from the University of Toronto in 1993 (twenty years ago!) was partly informed by full-text book scanning followed by computer-assisted textual analysis and lexical frequency testing using TACT 2.1 (Text-Analysis Computing Tools). This work was performed under the supervision of Dr. Ian Lancashire, a pioneer in this kind of analysis. At the time we were doing this work together, Google was not even a gleam in the California sunshine.

Of note... before we would scan the entire text of a book, we would get the permission of the author. Some authors refused to allow us to scan their books, so we didn't. Radical thinking.

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*Last Thursday, Judge Denny Chin of the US District Court (Southern District of New York) filed his latest decision in The Authors Guild v. Google Inc. legal action. This decision responds to requests for summary judgement stemming from Chin's earlier decision in the same case. You can see the full decision document here.

As before, Chin decided against authors and for Google in this longstanding dispute, concluding once again that Google's use of scanned books is transformative and therefore protected by the US fair use provision.

Nevertheless, The Authors Guild was very quick to make clear their intention to appeal this decision and take the matter into a higher court. Authors Guild Executive Director Paul Aiken had this to say in announcing the appeal:
 “We disagree with and are disappointed by the court’s decision today. This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense.”


Sylvia McNicoll said...

Clearly Google's dealings are not fair. They are not compensating the people who provide them with the content from which they earn profit. But what about fair dealing in education? Writers and creators must speak up to clearly define fair dealing percentages and/or units. It's not enough to just say 10% is too high.

John said...

Thanks for the comment, Sylvia. Unfortunately, nothing is clear in this argument these days. The bafflegab inherent in expansionist fair use and fair dealing positions has confused most of the discussion. If you ask frontline students and profs (as I have done many times) how much copying would be considered fair, they don't even approach 10% of a text, let alone a full text (as Google is claiming).

Percentages actually disguise the use behind a mathematical abstraction. 10% of a 400 page book is 40 pages(!). When I suggest to students and profs that schools might be claiming 40 full pages of text as "fair" they laugh, as they should.

I think we will see alternate definitions of fair dealing come from the creative sector in coming months.