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Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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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.

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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

« Verizon's Deal with the Dev..er, Disney | Main | Patry Reverses Course on Google Print Library Project »

September 22, 2005

Google Print Library: Clash of the Titans

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Via Siva Vaidhyanathan, Andrew Raff's round-up of weblog commentary on the Google Print library lawsuit, highlighting the sharp differences of opinion among people who typically agree. To wit:

Larry Lessig:


It is 1976 all over again. Then, like now, content owners turned to the courts to stop an extraordinary new technology. Then, like now, copyright is the weapon of choice. But then, like now, the content owners of course don’t really want the court to stop the new technology. Then, like now, they simply want to be paid for the innovations of someone else. Then, like now, the content owners ought to lose.

[...]

Google’s use is fair use. It would be in any case, but the total disaster of a property system that the Copyright Office has produced reinforces the conclusion that Google’s use is fair use. And for all those people who devoted years of their life to defend the right to p2p file-sharing — here’s your chance to show what this battle is really about:

Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The “authors’” claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you.


...and Siva himself:

...[This] whole thing looks like a dark, gathering storm. It's not just Google betting the company. It's Google gambling with all of our rights under copyright -- both as copyright producers and users. Many good things could be washed away. This case strikes at the heart of both Google and copyright. It's not some clever fair use algorithm. It's not just one in a string of cases that will slightly expand or slightly constrict users' rights (and, please remember, users are not a party to this suit). It's about the very defining essense of copyright and about corporate copying on a massive and unprecedented scale.

Michael Madison's latest post in some sense serves to bridge the two:

We agree on the stakes; we disagree on the tactics. How do we protect users’ rights and the public domain?

The problem is that the public domain cannot sue to protect itself. (Note the echo of environmental law.) Individual users can sue to protect their interests in the public domain, but we’ve seen first-hand the limits of that strategy. Regardless of your view of the merits of Eldred v. Ashcroft, it was pretty difficult for Eldred’s legal team to get more than 2 members of the Supreme Court to see why any of this mattered.

The next best strategy is to enable proxies to stand for the public domain. Proxies are imperfect in lots of ways, but one thing they have — especially if they happen to be large corporate entities — is a business model that depends on access to information.

...[If] we recognize Google as a proxy, then I continue to believe that sometimes you fight the fights that need fighting, not just the fights you can win.

[...]

I haven’t been an academic so long that I’ve lost the litigator’s sense that sometimes, a case deserves to be litigated and maybe even tried. I think that this is one.

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