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Google Books: Fair Use for the 1%

(from Music Intelligentsia)

Google dealt creators a serious blow in the last few weeks. In a bizarre ruling sought by Google on fair use in the Google Books case, a New York federal district court essentially decided that after years and years of litigation, authors could not sue Google as a class. According to Business Week:

Google attorney DaralynDurie told Judge Denny Chin in federal court in Manhattan that authors and photographers would be better off fending for themselves because their circumstances varied widely, especially since the copyright issue for authors involves the display of small snippets of text.

Yes, Google told Judge Denny Chin that after eight years of litigation during which the countries of Canada, France and Germany filed opposition briefs to protect their authors (and even the U.S. Department of Justice had the temerity to tepidly challenge Administration buddies Google), it was only fair to authors that they should not be able to sue Google as a class.

Judge Chin then ruled that scanning millions of books without permission was a “fair use” because in the years since the start of the litigation Google had scanned so many books and had relationships with libraries. The message being if you’re going to infringe, do it a lot, and if you can find some crackpot librarians to go along with you, even better. (Canadian author and Writers Union of Canada president John Degen sensibly suggests that Judge Chin actually committed the classic “post hoc” logical fallacy in his decision.)

Academic response to the Google Books project has been mixed at best, notwithstanding Judge Chin’s glittering generalities. Berkeley Professor Geoffrey Nunberg’s article, “Google’s Book Search: A Disaster for Scholars” illustrates a couple of problems of the monopoly of one that Judge Chin seemed to want to overlook:

Google’s book search is clearly on track to becoming the world’s largest digital library. No less important, it is also almost certain to be the last one. Google’s [8] year head start and its relationships with libraries and publishers give it an effective monopoly: No competitor will be able to come after it on the same scale.

Nor is technology going to lower the cost of entry. Scanning will always be an expensive, labor-intensive project. Of course, 50 or 100 years from now control of the collection may pass from Google to somebody else—Elsevier, Unesco, Wal-Mart. But it’s safe to assume that the digitized books that scholars will be working with then will be the very same ones that are sitting on Google’s servers today, augmented by the millions of titles published in the interim.

Judge Chin may be impressed with the virtues of one monopolist having a monopoly on “the world’s largest digital library” as a justification for his fair use ruling, but what about Google’s horrendous record on user privacy, complicity in the spy agency scandals, and sharp treatment of artists of all stripes suggests that they come to the fair use defense with clean hands?

So if the authors say no, why does Google send in their thuggish lawyers to force authors to submit? The authors of the books at issue clearly do not trust them—I suppose it is theoretically possible to have devised a more rancid method of alienating every living writer on the planet and the heirs of the dead—all at the same time—but I can’t think of what it would be. Who can forget the “Heidelberg Appeal” when 1,300 German authors like a contemporary Luther nailed their protest against Google Books to the doors of German President Horst Köhler, Chancellor Angela Merkel and the heads of Germany’s 16 federal states.

Self Serving Mistakes in the Metadata?

Professor Nunberg has noted one of the serious failures of Google Books that directly calls into question the very failing that Judge Chin trumpets as virtue: The metadata stinks.

Start with publication dates. To take Google’s word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler’s Killer in the Rain, The Portable Dorothy Parker, André Malraux’s La Condition Humaine, Stephen King’s Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams’s Culture and Society 1780-1950, and Robert Shelton’s biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf’s letters is dated 1900, when she would have been 8 years old. Tom Wolfe’s Bonfire of the Vanities is dated 1888, and an edition of Henry James’s What Maisie Knew is dated 1848.

Remember that there have been some serious discussions of Google taking on the role of database to copyright agencies around the world (perhaps even our own). Now think about Professor Nunberg’s criticism of copyright dates, which he found to be rampant in the “library”. And notice that Google’s mistakes always seemed to make in-copyright works older—much older—and therefore more likely to be in the public domain…which helps who, exactly?

Before you think that this has nothing to do with songwriters or the music business, or nothing to do with film makers and the movie business, think again. Aside from the fact that sheet music and screenplays are included in the “library”, Google has demonstrated a willingness do the same to all creators—for starters, there’s not that much difference between Google Books and YouTube. If you think I’m overstating it, consider this sarcastic quotation (or perhaps telling slip) by one of Google’s lead outside litigators speaking at this year’s SXSW: “It’s really important that we protect the rights of really good looking people in this society.” (Attorney Andrew Bridges of Fenwick & West.) Clearly, the only rights that interest Google are their own.

But Google’s mass misappropriation of the authors’ rights of publicity and the clear implied endorsement of the Google Books mass digitization turns on one thing—Google had the money to create the pile of works—a number of other companies had investigated but abandoned the idea in part because it seemed improper. Google also devoted its massive wealth to litigate authors into the ground because it is that important to them to defeat the rights of creators in general in their quest to commoditize the world’s information–be it your Google+ pictures or Jack Kerouac. (And with librarians leading the charge as weird as that may sound. If you doubt me, engage your librarian or your child’s librarian on the subject of copyright and see how long it is before you feel the need to call for an exorcist.)

Jack Kerouac and the T-Shirt Economy

Judge Chin’s ruling comes down to one “principle”, a message that will ring loud and clear across Silicon Valley (reinforcing what they already believe): Might makes right. And when it comes to fair use for the 1%, nothing says Internet freedom like getting away with it.

Except this time, Standard Oil 2.0 really gets away with it. While every generation of creators expects to fight The Man, Silicon Valley presents The Man 2.0. The Man 2.0 takes Standard Oil’s worst tricks to new lows and performs them at scale.

As antitrust scholar Jim Delong noted presciently in his article Google the Destroyer:

In most circumstances, the commoditizer’s goal is restrained by knowledge that enough money must be left in the system to support the creation of the complements….

Google is in a different position. Its major complements already exist, and it need not worry in the short term about continuing the flow. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A wealth of other works await digitizing – books, maps, visual arts, and so on. If these run out, Google and other Internet companies have hit on the concept of user-generated content and social networks, in which the users are sold to each other, with yet more advertising attached.

So, on the whole, Google can continue to do well even if it leaves providers of its complements gasping like fish on a beach.

If Jack Kerouac wrote in the Google Books world, would he give away the books and get a Levis sponsorship? Where is this generation’s literary hero, a Lawrence Ferlinghetti 2.0? If he’s like most small publishers, he’s gasping like a fish on the beach.

What Hath Google Wrought: Shut Up And Sing

Might makes right also rings loud and clear in the recent GoldieBlox “shut up and sing” litigation against the Beastie Boys. If you don’t know the GoldieBlox story, the company is a toy company founded by a Stanford grad who spoke at TED and whose crowd funded company specializes in toys that empower young women through encouraging them to think of careers in science and engineering.

Yes, groovier than thou. (A tone that saturates the Google Books ruling.)

Parody? What Parody?

GoldieBlox produced a clever commercial for their toys that showed young women using the toy–“GoldieBlox” (itself a play on the Robert Southey children’s story, “Goldilocks” and a registered trademark of Goldieblox, Inc.). Apparently as an afterthought according to the timeline in the commercial production company’s blog , the commercial producer added a re-record of the Beastie Boys’ song “Girls”:

“And we would add key details in Post: Beau’s inspired re-writing of an old, misogynistic Beastie Boys tune, “Girls” would add narrative drive [i.e., contributed to an idea that was already present without using the Beastie Boys] as we assembled the piece, and our resident geniuses at Pico Sound would augment the action with chain-reactive sound design…[wait--didn't the lawyers say it was a targeted parody of Beastie Boys all along? Shouldn't the video's story line have added to the parody?] “ (emphasis mine)

Did they get a license? Did they even try? No, no. GoldieBlox’s blatantly commercial use was protected by fair use, you see—just like Google Books. Even though the creative direction of the GoldieBlox viral video—which is the subject of their strategically filed lawsuit—apparently had nothing to do with the Beastie Boys according to the commercial producers, so is unlikely to have been the parody’s target. The “parody” was added after the fact to make the video more effective with a commercial hook. (GoldieBlox subsequently removed the Beastie’s song and re-released the same video with different music, which buttresses the idea that the video was not the parody as claimed by the GoldieBlox lawyers in the first place.)

But more importantly, GoldieBlox used the name “Beastie Boys” in the title of their viral YouTube video—a use that both misappropriated the band’s right of publicity and also created an implied endorsement of the video. This blatant attempt to free ride on the band’s good name is, to me, where the analysis should start. (Such free riding was not present in the fair use cases selectively cited as precedent by supporters of GoldieBlox.)

A Logical Step from the Illogical Google Books Ruling

So what do you have in GoldieBlox that Google Books foreshadowed? You have a Silicon Valley company deciding that they can just take a song by one of the most successful bands in recent history and do with it as they like in a commercial to sell a product, all the while associating the band’s name with their commercial and their product. Then the company has their massive San Francisco law firm (the 1,100 lawyer Orrick) sue the band to scare them off by filing what is, some think, a fatally flawed lawsuit.

What kind of people do this? Easy answer—the kind of people who don’t respect creators because creators are comparatively weak litigants. People who want to deny creators the ability to collectively protect themselves. Because this is the message of the Google Books case and Google’s influence in the Valley is not to be underestimated.

That is also the message that GoldieBlox sends to anyone who wants to hear it including their customers. The message was most concisely stated about the Beastie Boys by Mary Elizabeth Williams writing in Salon, who could easily have been addressing any author whose work was taken by Google for their books library:

The Beastie Boys spent a better part of their formidable career making it very clear to even the most casual observer that they were not, in fact, a pack of infantile misogynists. But even if they had been, that wouldn’t give anybody – even a company with a positive, girl-powery message – the right to steal from them. “Girls” is the Beastie Boys’ song, and they shouldn’t be expected to hand it over to anybody in some bizarre legal stab at public shaming. That’s not the inventive, original thinking that GoldieBlox appears to espouse. Instead of hiding behind the thoroughly lame excuse that “The song was sexist, ergo we can take it to sell our toys,” GoldieBlox could instead put on its big girls pants and make something awesome now with its creative talent. The company could instead prove that when challenged, it’s crafty. And that’s just my type.

[Ms. Williams had a particularly brilliant coda after GoldieBlox’s nonapology apology to the Beastie Boys:] The whole fiasco is a particularly huge disappointment for those of us who were briefly excited at the thought of a company that would take on the very real and rampant problems of sexism in both toy marketing and in the tech world our sons and daughters will someday be going out into….You know how many of us had been rooting for that? Maybe it doesn’t matter to GoldieBlox, which thanks to all the attention currently has one of the top-selling toys on Amazon. But you don’t create positive change in the world by cavalierly stepping all over the hard work of others.

Most gallingly of all, after lawyering up all over the band just two days ago, GoldieBlox ends its letter with a “Let’s be friends” message. What, no self-absolving smiley thrown in for good measure? If I were the Beastie Boys, I’d tell you to go ahead and hold your breath on that one, GoldieBlox. And I’d say that if you really want to “inspire the next generation” and “be good role models,” you would own up to your mistakes and apologize for them.

But if you’re in the 1%, you don’t want to apologize for anything until you find out first whether you can get away with it.


Copyright 2006 - 2019 Christian L. Castle