I read today that the Durie Tangri firm took time off from defending Rojadirecta to pursue a different case supporting the proposition that creators rights should be trampled at any convenient turn. Daralyn Durie stood before Judge Dennis Chin for what seems to me to be a rather shabby proposition: The Authors Guild and the American Society of Media Photographers should be disqualified from representing authors and photographers as a class in the Google Books litigation and that each author and photographer whose work Google infringed should be forced to sue Google individually. Or, I suppose, their heirs.
It should not be lost on any artist that what Google really wants is to destroy the ability of individual artists to organize and fight back collectively when their life’s work is stolen. If you ever doubted that premise, doubt it no longer. Disqualifying the authors and photographers organizations as class representatives would be an important step in fulfilling Google’s dream. Which is, of course, why it is a shabby proposition. Although Judge Chin did not issue a ruling from the bench, it appears that he didn’t think much of the argument, either.
According to Business Week:
Google attorney Daralyn Durie 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.
Judge Chin, however, wasn’t buying this line of reasoning–which could easily have been summarized as “If it please the Court, Google would like to get away with it.” Because after all, “nothing says freedom like getting away with it” and we know that Google is all about Internet Freedom. I’ve never been too sure what “Internet Freedom” means, but it apparently includes attacking creator organizations (including unions).
According to Business Week, “[t]he judge agreed that Google is ‘hoping that individual authors won’t come forward.'”
A challenge to The Authors Guild and the American Society of Media Photographers Inc. as litigants seemed unusual so many years after lawsuits were first filed, [Judge] Chin said. The Authors Guild sued in 2005. The photographers’ lawsuit was filed two years ago.
“Now all of a sudden Google is saying, `You don’t have standing,'” the judge said.
Durie responded that negotiations had consumed most of the time since lawsuits were first filed, and that it was not unusual to put off pretrial challenges while talks were going on.
Although negotiations appeared to have broken down with the authors, they were still proceeding with publishers and the photographers. Attorney James McGuire said outside court on behalf of the photographers: “We talk, but I wouldn’t characterize them as serious.”
Anyone who has ever “negotiated” with Google knows exactly what McGuire means. This entire case is disingenuous bunk and has been from the beginning a delaying action while Google scans as many books as it possibly can while dragging out the litigation as long as it can. And if you haven’t figured it out yet, it sure looks like the only thing that will stop Google from doing as it pleases is a U.S. Marshal with an arrest warrant. And even then, don’t be too sure that Google won’t have someone from the NSA swoop in and defend them, followed by an apology from the Department of Justice.
Be very clear about this one thing: The hope that individual creators won’t come forward is what underpins Google’s entire DMCA procedures, and frankly much of their business strategy. They want to profit from those who cannot afford to fight back. They want to have their high powered lawyers burn down the cornfield.
“[Judge] Chin…questioned whether Google really wanted to face multiple lawsuits from authors and photographers.
“It would take forever….” the judge said.
Unfortunately, your Honor, that’s exactly the point. Google could afford the litigation and they would love it to take forever–while they keep scanning. (See Epsilons at the Brave New Googleplex: Film by Fired Google Whistleblower Explains Horrendous Google Books Metadata.)
According to Publishers Weekly:
[Judge] Chin…suggest[ed] that Google would be “delighted” if he certified a class, because it would save Google the trouble of answering a flurry of individual suits. “No,” Durie responded. “We care whether the law is being applied correctly, and the correct application is not to certify a class.”
And there you have it, dear readers. The “correct” application is the application that Google will be able to use against you should you ever have the temerity to defy the Leviathan of Mountain View and seek to enforce your rights. Remember–the books case is being held in the same circuit that Google is litigating the YouTube case it just lost on appeal, and one of the next steps in the YouTube case will be to certify the class, including the songwriters and publishers who did not take the partial settlement. It is likely that Google is looking for some precedent that can help them avoid their responsibilities in the YouTube case as well as the books.
This is all happening, of course, without a thought being given to the welfare of Google stockholders. You remember them, don’t you? Those investors who are treated as 1/10th of a person?
Having enriched themselves at the public market, Google uses its wealth and political power to hurt people who are weaker than they are–which, frankly, is just about everyone.
Music Technology Policy 