Academic authors are being asked to stand by an watch as the Authors Guild litigates against their wishes and interests, but supposedly on their behalf.
This hubris is not exactly unprecedented. The plaintiffs in Hansberry v. Lee 311 U.S. 32 (1940) sought to enforce a racially restrictive covenant on behalf of a broad class of landowners including African-American’s who would be harmed by enforcement and whites who simply objected. Like the land-owners in Hansberry many academic authors disagree with Authors Guild’s crusade against book digitization. The Supreme Court did not allow the plaintiffs to hijack the class in Hansberry, hopefully the Second Circuit will not allow the Authors Guild to do so in Authors Guild v. Google.
Pamela Samuelson and David Hansen (both of the University of California, Berkeley – School of Law) have filed a very important amicus brief on behalf of over 150 academic authors* in the Second Circuit Court of Appeals in Authors Guild v. Google. (Available on ssrn)
The brief in support of defendant-appellant Google argues that class certification should have been denied by the District Court because the named plaintiffs don’t represent the interests of academic authors who comprise a large proportion of the class.
The Authors Guild cloaks its lawsuit in the mantel of authorship, yet in reality it represents only a small fraction of the the class it has constructed. Most of the books that Google scanned from major research library collections were written by academics.
The basic problem is that the three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics.
The plaintiffs’ request for an injunction to stop Google from making the Book Search corpus available would be harmful to academic author interests. The only way for the interests of academic authors to be vindicated in this litigation, given the positions that the plaintiffs have taken thus far, is for Google to prevail on its fair use defense and for the named plaintiffs to lose.
As we explained in the Digital Humanities Amicus Brief in the district court, “[m]ass digitization, like that employed by Google, is a key enabler of socially valuable computational and statistical research (often called “data mining” or “text mining”),” which allows researchers to discover and use the non-copyrightable facts and ideas that are contained within the collection of copyrighted works themselves.
The Authors Guild are bad representatives of the interests of academic authors because
- Academic authors would generally prefer their books be findable using Google Book Search.
- If the Authors Guild wins, academic authors will be deprived of a valuable resource, in the form of the Google Book Search Engine and the HathiTrust Digital Library.
- If the Authors Guild wins, text mining — the most basic tool of the Digital Humanities — will have been declared to be prima facie illegal.