Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« If You Build It, They Will Come | Main | Your "Million Dollar Idea" Is My Million Dollar Idea »

August 12, 2005

Siva Vaidhyanathan: Google Is Right to Hit Pause on Library Plans

Email This Entry

Posted by

Siva Vaidhyanathan responds to Aaron Swartz's post below on Google's decision to press pause on the Google Print library project in order to allow publishers to opt out of scanning:


Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google's original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.

If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain. I can't imagine what sort of argument -- short of copyright nihilism -- would justify such a radical change in copyright law. [...]

If the University of Michigan wanted to do this copying for its own patrons, then it certainly could. I wish more libraries would push their rights under copyright. But corporations do not have the same leeway as libraries. Libraries work for us. Corporations work for themselves. [...]

So I am very pleased that Google has decided to work with publishers (like it said it would originally) to convince them that offering their text in searchable form is good business for all. I still have some major problems with the contracts that these libraries signed with Google. I think the libraries are getting played badly here and they are violating their own principles of openness and public service by letting Google take charge and set the terms of this service.

Google might be a very good corporation -- one of the best ever, probably. But it's still not a library. Let's try to remember that.


Update: Aaron is updating his post with new developments, including providing a link to BoingBoing's round-up of reactions.

Update #2: Derek Slater offers an impassioned rebuttal to Siva's argument:


[The] caselaw doesn't amount to what Siva implies it does. Though it's only a brief citation, it seems Siva seriously misreads American Geophysical Union v. Texaco. The court didn't rule against Texaco because it was a corporation. In fact, the appeals court specifically disagreed with the district court's "undue emphasis" on the for-profit nature of Texaco.

[...]

We can put aside caselaw and go to straight-up normative analysis - Siva thinks that this Google Print is bad, bad, bad. What I see is gross hyperbole. What Google's doing is nothing like widespread infringing file-sharing on P2P. Sure, they're copying the entire book, but they're only providing small selections. I don't see how that amounts to a "copyright meltdown." (I know that you can try to do different searches to over time accumulate the whole book, but Google does enough to frustrate that, I think.)

Libraries good, corporations bad doesn't ring true for me. Without a doubt, I'm glad that people are becoming more skeptical of Google, despite their "we're not evil" mantra. However, in this case, Google was providing an important public service, one that happened to benefit the company commercially, but one that also did not pose a serious threat to copyright holders (in fact, it probably would help them), and for those reasons I think Google Print should be lawful.

Comments (7) + TrackBacks (0) | Category: Counterpoint


COMMENTS

1. Derek Slater on August 12, 2005 4:39 PM writes...

I think Siva is dead wrong here on a number of scores:

http://blogs.law.harvard.edu/cmusings/2005/08/12#a1267

Permalink to Comment

2. SFix on August 12, 2005 9:16 PM writes...

"Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google's original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco"

Hmm...Well, if google isn't allowed to scan books without permission then it isn't allowed to scan the internet without permission. Websites and Books are covered under the same copyright laws. In both cases Google copies the entire contents without permission to its computers and offers a commercial service based on the use of copyrighted material. I guess Sid wants Google to stop doing internet spidering as well.

Permalink to Comment

3. SFix on August 12, 2005 9:19 PM writes...

Oops, meant "Siva" not "Sid."

Permalink to Comment

4. cjovalle on August 13, 2005 12:24 AM writes...

Websites and books are covered by the same copyright law. Digitizing information and indexing already digital information is not treated the same under copyright law.

To some extent, I'm playing devil's advocate. I think Google Prints is an interesting idea.

I don't quite understand the argument that Siva "seriously misreads" the case. The Texaco decision certainly demonstrates a fair use evaluation of some commercial copying, and doesn't solely focus on the fact that Texaco is a commercial entity. (The Texaco case has other problems, such as the circular licensing/market effect reasoning, but that's another story. :P)

I don't think Siva is just saying "libraries good, companies bad" either. Recognizing that libraries and commercial entities have different reasons for their actions isn't the same as making those types of judgments. Furthermore, not for profit libraries and archives can copy materials that commercial entities can't, by statutory law. Even when libraries digitize works, however, they're very restricted in how the digitized work can be made available to the public, and Google Print goes far beyond those limitations. (I find those limitations, by the way, restricting digitized material to the physical location of the library or archive vague and overly restrictive.)

I would like to see more about the contracts that Google has with the libraries.

I think Google Print is a pretty cool idea, and I would love to see it working. However, if they're basing their digitization and distribution of exerpts on fair use then both of those acts need to be covered by a fair use analysis. Even if Google is only making exerpts from the copyrighted work available, the actual act of digitizing itself is a potential infringement. I haven't read very good arguments about why that process is legal (although I have read decent arguments about why it should be legal).

Permalink to Comment

5. Karl-Friedrich Lenz on August 13, 2005 12:26 AM writes...

If Google can't copy all books and make an index from them (I certainly think they can't and they shouldn't be allowed to do so, agreeing with Siva Vaidhyanathan), then what exactly is the difference to their indexing of the web?

Don't they need to clear the rights to that as well?

If anything, the web index is infringing even stronger, since they also display caches of all pages, while the book index would never display the whole book.

Permalink to Comment

6. Seth Finkelstein on August 13, 2005 1:01 AM writes...

Website are typically free for the copying, while books are not. This commercial vs. noncommercial distinction is the answer to the "How is it different from ..." objection.

Moreover, one can opt-out of being copied by Google. So one could say that the effect here is more like the book publisher's "robots.txt".

Permalink to Comment

7. Siva Vaidhyanathan on August 13, 2005 9:00 AM writes...

Great comments! This is an interesting debate.

I posted a response to Derek and others here:

http://www.nyu.edu/classes/siva/archives/001849.html

Permalink to Comment


EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
Congress Restores Bulk Unlock Rights
When is a Game a Clone?
Subscription Services for Books
Lest You Had Any Doubts, the ALA is on the Right Side Again
Deadly Effects of Unaffordable Medicines (TPP)
Planet Money on the Case Against Patents
FMC + Musicians vs FCC on Net Neutrality
Be the Potato Salad