If you read it anyplace else, it's not Really Legal!
Zick Rubin’s columns on the lighter side of publishing and intellectual property law
Google Books, the Authors Guild, and Cognitive Dissonance
By Zick Rubin
On November 14, 2013, after eight years of litigation, Judge Denny Chin of the federal court in New York ruled that Google's massive book-scanning project -- 20 million books and counting -- is permissible as fair use: a “highly transformative" use that "has become an essential research tool for librarians, scholars, and students." The opinion can be found here. A summary of the litigation is here.
In the wake of what seems to be a definitive and unassailable decision, the Authors Guild, which brought the copyright infringement lawsuit, has shown no signs of backing down. If anything, the Guild is continuing its fight against Google with increased fervor. As a one-time social psychologist – as well as a long-time member of the Authors Guild – I am wondering how we psychologists can explain the Guild’s seemingly quixotic behavior.
In fact, by November 2013, Judge Chin’s ruling that the Google Books project was fair use was a foregone conclusion. In July, 2013, in remanding the case after a procedural appeal, the Second Circuit Court of Appeals had strongly hinted to Judge Chin that it believed the project to be fair use. In a parallel case brought by the Authors Guild against HathiTrust, a consortium of libraries that worked with Google, federal judge Harold Baer declared in October, 2013, that "I cannot imagine a definition of fair use that . . . would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts."
Judge Chin had little problem finding the project to be "highly transformative." Since 1994, when the Supreme Court last addressed the issue, it has become increasingly clear that such transformativeness – giving a creative work “new expression, meaning, or message” – is the most important factor in determinations of fair use. The judge found that, rather than simply copying the books, "Google Books . . . transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books . . . . It 'adds value to the original' and allows for the 'the creation of new information, new aesthetics, new insights and understandings.'"
The Google Books project undoubtedly helps authors as well. By making the contents of major libraries searchable, the project can identify and make accessible books that would otherwise have scarcely been noticed. Google provides searchers only with “snippets,” not entire books. It also provides links from search results to online sites where individuals and libraries can get beyond the snippets and actually buy the books. In an age of online shopping, most authors will applaud Judge Chin's decision.
One might have expected the Authors Guild, after investing years of time, effort, and money into what turned out to be a losing cause, would have tried to mend fences with Google. Indeed, the Association of American Publishers, which had also sued Google, reached an amicable settlement with Google last year. Definitions of fair use – a notoriously amorphous part of copyright law – do change over time, and at this point the judicial tide has turned against the Authors Guild’s restrictive position.
But, instead, the Authors Guild reacted to Judge Chin’s decision with blazing guns. It issued a statement headed “Round One to Google . . . Guild Plans Appeal.” After eight years of litigation, including a strong hint from the Second Circuit, it seemed more like a knockout than the end of “Round One.” And the planned appeal seems to have about as much chance of success as sending a letter to the referee the day after the fight.
The Guild made clear that, despite the rising tide of fair use, its own beliefs about the limited scope of fair use have, if anything, been strengthened. It publicly called the Google Books project “exploitation” that “far extends the limits of fair use.” In its annual fund-raising letter to authors in late November, the Guild and its tax-exempt Authors Guild Foundation called for continued support for its legal efforts “to restore control of literary works to authors.”
Commentators from all quarters – including many authors – have been scratching their heads about the Guild’s persistence in an apparently losing cause. Some detect arrogance or bullheadedness on the part of the Guild’s leaders. But, in fact, the Guild’s leaders – including its president, Scott Turow, one of my favorite novelists – are in most respects sensitive and open-minded people. Others have diagnosed a lurking technophobia. But the Authors Guild is a sophisticated and tech-savvy group that shows little inclination to send authors back to their manual typewriters.
A better explanation may come from Leon Festinger's theory of cognitive dissonance, published in 1957, a social-psychological staple that views human beings as rationalizing animals, rather than rational ones. The theory posits that once we have committed ourselves to a belief -- especially publicly -- any disconfirming information can be a devastating blow to our self-esteem. We can sometimes reduce such dissonance by changing our views. But when the views are deeply entrenched, it’s hard to change them – just watch the members of Congress in 2013. So instead,
when we receive disconfirming information, we reduce cognitive dissonance by becoming even more committed to our views, perceiving new information selectively to fit our preconceived notions, and
buttressing our beliefs by
broadcasting them more loudly than ever.
In a classic demonstration of this rationalizing phenomenon, Festinger and his coworkers embedded themselves in a doomsday cult that had confidently expected the world to be destroyed by a great flood on the coming December 21. The cult members knew that on the appointed day a fleet of flying saucers would come from the planet Clarion to rescue the true believers. The cult members gave away their money, homes, and possessions to get ready for the big day. When December 21 came and went without incident, the group members could hardly admit defeat without experiencing a crushing blow to their sense of self. Instead, they doubled down. They decided that, as a result of their own valiant efforts, the doomsday date had changed -- and they announced the revised schedule. In order to reduce the cognitive dissonance and keep their self-esteem intact, they fortified their beliefs: they not only remained true believers but they also began to hold press conferences.
Of course, shifting judicial interpretations of fair use are not exactly the end of the world. The law does change and one can imagine a future in which the fair use pendulum swings back in a more restrictive direction. For the foreseeable future, though,
making snippets of the world’s books accessible is “fair,” and it would be best if the true believers at the Authors Guild could bring themselves to acknowledge it. We will be watching the next acts of this drama with great interest.
Copyright © 2013 by Zick Rubin