Begin forwarded message: From: Cindy Cohn <cindy@xxxxxxx> Date: October 30, 2005 5:12:43 PM EST To: dave@xxxxxxxxxx Subject: Re: [IP] more on An author's dissent on Google Print Dave,One last message to clarify some of the legal cases and doctrines that have been thrown around.
The MP3.com case will certainly be cited by the parties. I think it's distinguishable because MP3.com was offering the whole work to its users (via streaming if I remember right), not just snippets. MP3.com wasn't about finding works, it was about letting users experience the whole works. Google is about finding works and they only let you see snippets (I think Lauren worries that Google is going to do more than that and my view is that if the evidence proves that the facts are different than Google claims, then we need a different analysis, but I don't think the current lawsuit is based on fears that Google will do more than offer snippets).
The case that will be relied upon by Google, likely, is Kelly v. Arribasoft:
http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/That had to do with searching, like this, and in it the 9th Circuit held that making thumbnails of bigger works for purposes of an image search engine was fair use. No doubt the AG and publishers will argue that Kelly can be distinguished, but I submit that on its facts, it's closer to what Google was doing than the MP3.com case -- making copies that help the public find works rather than replacing the experience of a work.
As for the assertions from some that copyright law flatly prevents copying of an entire work, that is just nonsense. See 18 U.S.C. 107, for the listing of the 4 factors. Nothing in the fair use doctrine prohibits a finding that use of an entire work is fair. Sony v. Universal City Studios, 464 U.S. 417, 450 (1984). The amount of copying is a factor in the fair use analysis, but it's only one. In fact, it's not even the most important factor. The courts have pretty uniformly said that the most important factor is the effect on the market for the work and here my assertion is that no one can seriously argue that a Google snippet is a substitute for purchasing a whole book.
BTW, as the citation above demonstrates, if copying of the entire work was per se infringement, the Betamax case would have come out the other way. You make an entire copy when you use your VCR. Another case that would have come out another way is the OPG v. Diebold case which I won last year, where students at Swarthmore copied an entire email archive owned by Diebold and posted it on their website to demonstrate that Diebold knew about flaws in it electronic voting machines. Again, the court found fair use despite the fact that the students copied the entire work, and Diebold ended up paying EFF and our clients a total of $125,000, for falsely representing that the archive was infringing to the ISP hosting the website.
Cindy On Oct 30, 2005, at 12:30 PM, David Farber wrote:
Begin forwarded message: From: Sid Karin <skarin@xxxxxxxx> Date: October 30, 2005 1:15:23 PM EST To: dave@xxxxxxxxxx Subject: Re: [IP] more on An author's dissent on Google Print Dave, I believe that this aspect of argument is exactly the basis for the (very similar) MP3.com case. They *bought* an extensive library of CDs and made them available on line only to users who could show that they had legitimate copy of their own. They *lost* in court, and *lost* on appeal in federal circuit court. It's my understanding that the reasoning was that they simply didn't have the right to make the digital copies. I've been surprised to see no reference to this precedent in any of the discussion to date, on IP and elsewhere. But then IANAL.... Cheers, ......SidBegin forwarded message: From: Tim O'Reilly <timoreilly@xxxxxxxxx> Date: October 30, 2005 12:36:47 PM EST To: dave@xxxxxxxxxx Subject: Re: [IP] more on An author's dissent on Google Print Reply-To: tim@xxxxxxxxxxx On 10/30/05, David Pakman <david@xxxxxxxxxxxxxxxxxxxxxxxxx> wrote:This cannot be fair use because, among so many other reasons, the copieris a COMMERCIAL entity actually making money by selling advertising around the copied works.Dave, in response to this argument, it should be pointed out that the NewYork Review of Books or the NY Times book review section are also "COMMERCIAL entit[ies] actually making money by selling advertising around the copied works." Next time you read a book review (also intended to help sell books and help people to find them), not the extensive use of quotations from the book, surrounded on all sides by advertising.This argument, in short, is a complete canard. And it's the dirty littlesecret behind both the Author's Guild and AAP suits. I've talked to board members of both organizations, and while the talk is all about copyright principle, before long, a note of envy, which soon swells to an unmistakable whine, creeps in. Google is making so much money. They'll make even more money here. We ought to get a piece of it. And this despite the fact that the works that are causing most of the controversy are those in the "twilight zone" of publishing: the 60-odd percent of works that are neither in the public domain nor in active commercial use. No one's arguing about the public domain works, and many of the commercial works are being opted in -- and do in fact create an opportunity for an author or publisher to profit from Google's use of them. These numbers are based on a recent study by the Online Online Computer Library Center, which analyzed the books in the collections of the five libraries participating in the Google Print for Libraries project. By their figures, only about 20% of the 10.5 million unique titles in the collections of the five libraries working with Google are out of copyright, using the 1923 change in the copyright law as a dividing line before which you can assume books are out of copyright. Meanwhile, another 10-20% are under copyright, in print, and being commercially exploited. This is the realm of titles opted in by publishers to programs like Google Print or Amazon Search Inside the Book. That leaves 60-70% of all titles ever published in the twilight zone, out of print, but still under copyright. For many of these books, no one even knows any longer who owns the rights, and there is no commercial incentive to figure it out, making the publishers' request for "opt in" a fig leaf that will ultimately lead only to continued neglect. Google Print for Libraries brilliantly cuts theGordian knot that keeps these works in obscurity, creating an economicincentive for publishers and authors to assert their rights in the event that readers rediscover their value. The OCLC study is at http://www.dlib.org/dlib/september05/lavoie/09lavoie.html I've written some more about these numbers athttp://radar.oreilly.com/archives/2005/10/ oca_vs_google_print_library_pr.html________________________________________________________ Tim O'Reilly, CEO O'Reilly Media 1005 Gravenstein Highway North, Sebastopol, CA 95472 707-827-7150; fax 707-823-9746http://www.oreilly.com; http://radar.oreilly.com; http:// tim.oreilly.com------------------------------------- You are subscribed as skarin@xxxxxxxx To manage your subscription, go to http://v2.listbox.com/member/?listname=ipArchives at: http://www.interesting-people.org/archives/ interesting-people/-- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Sidney Karin, Ph.D., P.E. 858-534-5075 (voice) 858-822-5443 (fax)skarin@xxxxxxxx Professor,Department of Computer Science and Engineering Director Emeritus San Diego Supercomputer Center University of California, San Diego 9500 Gilman Drive La Jolla, CA 92093-0505 ------------------------------------- You are subscribed as Cindy@xxxxxxx To manage your subscription, go to http://v2.listbox.com/member/?listname=ipArchives at: http://www.interesting-people.org/archives/interesting- people/
******************************************************** Cindy Cohn ---- Cindy@xxxxxxx Legal Director ---- www.eff.org Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 (415) 436-9333 x108 (415) 436-9993 (fax) ------------------------------------- You are subscribed as roessler@xxxxxxxxxxxxxxxxxx To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/