July 31st, 2012

With Much Ado About Public Service, Google Pleads Fair Use in Big Copyright Case

Arguing that its Google Books program makes fair use of copyrighted books by providing an indispensable public service, Google has asked a federal court to dismiss The Authors Guild’s claim that Google is infringing the copyrights of authors on a “massive” scale.

Google has scanned more than 12 million books–many of them still under copyright protection–as part of its Google Books program. Google indexes every word of the scanned books. It then makes snippets of the books available in search engine results, according to keywords entered by Google search engine users.

Google’s use of books is fair because it provides vast public benefits without any demonstrated harm to plaintiffs,Google asserts in its motion, filed in US District Court in New York City on July 27. (Emphasis is Google’s.)

The Authors Guild originally sued Google for copyright infringement in 2005, alleging the search engine company is scanning books without permission from authors for its own commercial gain. The guild says the Google Books program undermines the ability of authors to license and sell their books. It is seeking a court injunction to stop the Google Books program. The American Society of Media Photographers has filed a similar but separate lawsuit against Google in 2010.

In making its fair use argument, Google paints itself as a beleaguered public servant, prevented from advancing human knowledge by specious claims of copyright infringement.

“Google Books is an important advance on the card catalogue method of finding books,” the company says in its motion. “The advance is simply stated: unlike card catalogues, which are limited to a very small amount of bibliographic information, Google Books permits full-text search, identifying books that could never be found using even the most thorough card catalog. Readers benefit by being able to find relevant books. Authors benefit because their books can be more readily found, purchased, and read. The public benefits from the increase of knowledge that results.”

Google says that users cannot download the entire text of the books that show up in the search engine results. It only leads them to relevant books which they can purchase elsewhere if they wish.

The scanning and indexing of the books is fair use, Google argues, because the end use (thorough indexing of every word of every book) is “highly transformative”:  Google search engine users can search for information and get results showing snippets from all books containing the search terms. “Indeed, it is no overstatement to say that Google Books has transformed scholarly research,” the company says in its motion. “Google Books yields a literally unprecedented public benefit, and that benefit militates strongly in favor of a finding that Google’s scanning,indexing, and snippet display constitute fair use.”

Google does not mention that its apparent fit of civic virtue is driven by the potential to turn a profit by scanning and indexing the copyright works of authors. Those who use the Google Books index would effectively provide Google with personal information every time they did a search. That information could be sold to marketers, or used by Google to push highly targeted advertisements to Google search engine users.

But Google waves its hands to distract the court’s attention from all of that: “Google’s status as a commercial entity does not tip the scales against a finding of fair use…Much more significant is that a student or professor (or indeed anyone who finds a Library Project book on Google Books) is engaging in precisely the sort of use historically favored as noncommercial.”

Google and The Authors Guild had reached a tentative agreement in 2009 to settle the case. It would have allowed the Google Books program to continue if authors were allowed to opt out. But the judge in thee case rejected the agreement. He said the agreement would have to be ‘opt in’ for all authors (rather than opt out) in order to comply with copyright law.

Google has rejected an ‘opt in’ system as too cumbersome, so the Authors Guild suit has continued. The ASMP lawsuit is also pending.

Without commenting directly on Google’s motion, attorneys for The Authors Guild say they have filed their own motion for summary judgment. That motion is not yet available for public review, however.

Related stories:
Judge Block’s Google’s Divide-and-Conquer Strategy in Big Copyright Case
ASMP, Other Trade Groups Sue Google (subscription required)

July 16th, 2012

ASMP Offers Model Release Forms as Free App

American Society of Media Photographers, a trade association for professional photographers, has converted its standard model and property release forms into a free downloadable app for iPhones and iPads. The app is available now through the iTunes store.

As ASMP explains on its Web site, the releases use standard release language, relevant to most still and motion projects that photographers might license. With the app, models (and parents or guardians of minors who are subjects of a photo), property owners and witnesses can sign the release using a finger or stylus on the touch screen. The signed releases indicate they have given consent to be photographed and given permission to the photographer to use the image. Each release includes fields which can be customized for entering information on the model or property.

With the camera on iPhones and iPads, you can take a photo of the subject or property to attach to the release. A PDF file of the signed release can then be sent via email to a client, stock agency or your own computer.

Standard model and property release language provides a level of protection if the subject files claims for defamation or invasion of privacy. Leslie Burns, a photography consultant who recently became a lawyer, recently noted in the PDN article “5 Things You Should Not Do Yourself” that there are exceptions. Burns advised that if you shoot erotica, nudes, “or kids in any way, shape or form,” consult a lawyer about your model releases “because there’s a greater risk of getting sued,” she said.

Related articles:
5 Things You Should Not Do Yourself

Vampire Weekend (Model Release) Case Dismissed

Vampire Weekend Album Cover Model Sues Band, Photographer for $2Million (archived)

July 5th, 2012

Getty IPO On Hold as $4 Billion Private Equity Sale Looms

Earlier this year Getty Images, the largest stock photo agency, retained Goldman Sachs and JPMorgan Chase to evaluate the possibility of a sale or an initial public offering (IPO). According to reports published yesterday by The Wall Street Journal and Reuters, Hellman & Friedman, the private equity firm that owns Getty, is preparing for the second round of a bidding process that would see the stock agency sold to another private equity firm for between $3.5 and $4 billion. (Hellman & Friedman also owns PDN parent company Nielsen.)

Unnamed sources for the Wall Street Journal said the IPO was on hold while private equity firms Kohlberg Kravis Roberts & Co. L.P. and TPG, among others, evaluated their interest in purchasing Getty. Earlier this year KKR invested $150 million in European microstock agency Fotolia.

Hellman & Friedman was rumored to have paid $2.4 billion for a majority stake in Getty Images in 2008, which was publicly traded at the time.

According to the Reuters report, Getty “has seen little growth in earnings before interest, tax, depreciation and amortization (EBITDA) since Hellman bought it but has enjoyed increasing demand for its online imagery products and services.”

Since Getty became private, the agency has made several moves that may have been geared to making the company look more attractive to potential buyers in the lead up to a sale or IPO. The cost-cutting measures have affected its contributing photographers, and the agency has also gone through rounds of layoffs. For instance in November of last year, Getty introduced tough new contracts, cutting back royalties it pays to photographers, telling contributors that rights-managed images that have not sold well will be moved to royalty-free collections while the royalty-free images would be sold as part of subscription packages. The move drew the ire of photographers’ trade associations ASMP and APA, as well as a lengthy string of comments on our blog.

May 31st, 2012

Judge Allows ASMP and Authors Guild Suits Against Google to Proceed

A federal court judge has ruled that the Authors Guild and the American Society of Media Photographers have standing to sue Google on behalf of their members to try to stop the Google Books program. The trade associations have filed two separate lawsuits on the grounds that Google is copying millions of books without permission, in violation of copyright law.

The interim ruling in the case, issued today also cleared the way for Authors Guild members to press their case as a class action lawsuit, which Google had tried to prevent.

The ruling is a procedural decision, not a final ruling on the merits of the case. But it is important because it effectively blocks Google from using a divide-and-conquer strategy to defeat the claims of the plaintiffs.

The full story is now on PDNOnline.