Richard Nash, the publisher of the excellent small press publisher Soft Skull Press, has published a fascinating correspondance he’s had with the Association of American Publishers over their Google lawsuit, which he vehemently opposes:
The e-mail letter to the Small & Independent Publishers Committee [which apprised us of the suit, and of which I am a member, though I’ve flagged in my attendance in the last year] hints at how grateful SIP publishers should be that the AAP is spending its money on this case. I would like to register one important caveat. Soft Skull Press has been subject to three copyright and trademark cease-and-desist letters (one from an AAP member) in the past two years, letters that I could only defend against because my fiancee is an intellectual property lawyer. The biggest threat Soft Skull’s intellectual property faced in the past 2 years was from a claim from HarperCollins that was so overreaching it bordered on sanctionable. In sum, the largest members of the AAP are well able to defend themselves, and have used their resources in the past to attempt to legally strong-arm smaller members of the AAP. Thus while I accept that the AAP has to represent the expressed interest of a majority of its members, I do hope that it will not be represented to the public that the AAP is riding to the rescue of its smallest members–it would be just a little too over-the-top. (Your press release does not do this, I recognize, only the letter to us.)
4. Unlike in trademark law, where a failure to defend one’s trademark can result in a weakening of the mark, failure to sue for copyright infringement does not in any way diminish one’s right to sue in other cases. Again and again, one hears a domino-effect claim from parties opposed to Google Print. I have no idea what that claim means since it is not a legal observation. However, should other companies seek to do what Google is doing and remain within what many, include myself, consider to be the bounds of fair use, then a domino effect would be wonderful. If, on the other hand, they do not operate within the bound of fair use, let’s say they propose to sell entire chapters, or the book, then failing to stop Google would have no effect whatsoever on anyone’s ability to sue this other hypothetical company. In fact, should the courts rule against the AAP, that precedent could create an even more expansive approach to Fair Use than the one presently in effect.
(Thanks, Maud!)