[IP] more on legal points djf An author's dissent on Google Print
Begin forwarded message:
From: Brad Templeton <btm@xxxxxxxxxxxxxx>
Date: October 30, 2005 6:51:59 PM EST
To: David Farber <dave@xxxxxxxxxx>
Cc: Ip Ip <ip@xxxxxxxxxxxxxx>
Subject: Re: [IP] more on legal points djf An author's dissent on
Google Print
The real interesting lesson of the Google Print/Libraries story is
an examination of how our copyright laws change. A strict
interpretation
of copyright law as originally written and interpreted held it to
prohibit just about all copies, with a limited number of fair use
exceptions. Those exceptions have grown, case by case (and more
rarely, by statutory change) largely when bold parties
(including older search engines, Diamond Rio, MP3.com, ReplayTV, Google,
Grokster, and most famously the Sony Betamax) have stretched the bounds.
Some have lost, many have won, some have come down in the middle.
By traditional interpretations, the search engines and the internet
archive are brashly illegal under copyright law. Some have argued
even routers that transmit data by copying packets could be illegal.
Some have aruged USENET's store and forward to be illegal. As we
know the studios argued taping a movie to watch it later was illegal
and that moving a song from your CD to your MP4 player was illegal.
This case will alter the flux, and the fact that some interpretations
find it unlawful should not make us predict with any certainty that
what google is doing is a violation of copyright. Not with any
certainty at all.
You also must break it into two parts. Part 1 is scanning the books,
which is indeed copying them. Should the libraries and other owners
be able to scan their books to make better use of them? Most think so.
The second part, once you have saved a copy of a copyrighted work,
whether
you can then index it and offer search to the public, providing snippets
that match search results -- well, that's exactly what search engines
have
done since Lycos. And few would fight to make that illegal today,
though
some do.
Can we say that it's OK for a library to scan books it owns, and OK to
build and serve an index of other people's content you copied
legitimately
but not to combine the two? That will be part of what the courts will
look at.
As I noted earlier, the real battle is over the default, since Google
is offering an opt-out procedure though they could make it even easier.
(And no doubt they'll offer an after-the-fact opt-out.)
The way this would get really interesting would be if a competing
service
were to also index books, and pay the copyright holders a portion of
revenue from the searches (as some authors seek here) and presumably
insist
that they opt-out of any non-paying index like google. In the event of
such, the authors might get more attention to a claim of harm.
A voluntary collective licence might make sense here.
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