It's a case that pits an Internet titan versus an army of professional photographers. Last Thursday, a federal judge in New York ruled that the American Society of Media Photographers has the right, or legal standing, to sue Google, Inc. in a class action lawsuit on behalf of all photographers and illustrators who have had their copyrighted work scanned into the Google Books "Library Project" database. The case marks another front in the battle over what constitutes "fair use" — an issue of keen interest for artists and creative professionals of all types.
Eugene H. Mopsik, ASMP's executive director, noted that the association is not against Google Books in general, but just wants its members to be paid for their contributions. "We don't want to stand in the way of something that has this spectacular future," he told ARTINFO, "but we are ultimately seeking a compensation scheme of some type."
The case was originally brought by the ASMP against Google in 2010, after the organization failed to intervene in a similar case brought by the Authors Guild and the Association of American Publishers (which is ongoing) and decided to file their own suit. The ASMP seeks "injunctive and declaratory relief," according to the decision, which means that they aren't after money, but they want the judge to tell Google that, 1) it must stop scanning copyrighted works, and 2) scanning copyrighted works is against the law.
Google, on the other hand, believes that its project constitutes fair use in that it is making the books searchable, but not giving the whole text away for free. It's Web site states, "Google Books helps you search within and discover books, not download or read books without paying for them. So when you find a book that's still under copyright, you'll see only a small portion of the book at a time … plus links to places where you can buy or borrow it." Google essentially argues that it helps authors and illustrators by showing short previews and encouraging people to buy books that they find.
The current decision, handed down by 2nd Circuit judge Denny Chin, clears the way for the ASMP to go forward with the lawsuit on behalf of the class of individuals whose work was scanned and published by Google, despite Google's objection to their legal standing, because "[n]either the claims asserted nor the relief requested by the associational plaintiffs require a degree of individual participation that precludes associational standing," meaning that it's unnecessary for every individual to get involved and the ASMP can represent aggrieved photographers.
"We were very pleased with the decision because it reaffirms our standing as plaintiffs in the case and establishes some precedent in the future for cases of this type," said Mopsik.
Victor Perlman, who serves as general counsel for ASMP, noted that there are about 7,000 members in the organization, but the class action would cover any photographer or illustrator whose work has been scanned by Google — he and Mopsik estimated that over 100,000 individuals fit the bill.