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October 26, 2005
A Copy Is As a Copy Does
William Patry: "If [a] defendant's 'fixation' is evanscent, as in buffering or caching, why, for infringement purposes, should it be deemed a 'copy'? Such copying is not being done for its own value, but rather to facilitate a non-infringing use, such as a licensed public performance. Might not the same be true for intermediate copying and other copying technologically necessary for non-infringing activity (like limited searching of books)?"
On that note, here's a snippet from a forthcoming Wired Magazine piece by Larry Lessig, courtesy of the Pho list (sorry there's no link; the article's evidently not online yet) :
Google creates value -- a lot of it -- by indexing existing content. But when it comes to books, the content owners want a slice of that value -- and who wouldn't? No publisher ever said, "I'll lose money on book sales, but I'll make it up from Internet searches." They therefore intone "grave misgivings" about copyright in order to demand a piece of the action: money. It's an old technique (the Motion Picture Association of America famously tried it against Sony Betamax). But the inspiration is not copyright, it's Tony Soprano.
Google wants to index content. Never in the history of copyright law would anyone have thought that you needed permission from a publisher to index a book's content. Imagine if a library needed consent to create a card catalog. But Google indexes by "copying." And since 1909, US copyright law has given copyright holders the exclusive right to control copies of their works. "Bingo!" say the content owners.
But the Congress that altered the copyright statutes in 1909 didn't have Google Print in mind. By copy, Congress meant the sort of act that would be in competition with the incentives that copyright law was (fittingly) meant to establish for authors. Nothing in what Google wants to do affects those incentives to creativity.
Much, much, much more discussion going on out there. Alas, I can't linger. Here, a set of links for following the ongoing blogalogue among those who can: Siva Vaidhyanathan
, Derek Slater
, and Michael Madison
- Siva: "Google can and should do what's best for its shareholders. The rest of us should worry about what's best for the culture, democracy, and the Internet."
- Derek: "[The] potential injury to copyright holders is minute, the potential benefit to them is significant, and the potential public benefit is even greater. Can the market satisfy all our public policy concerns? No. But Google can be a private company and still fufill public policy objectives."
- Michael: "It’s right to be perplexed by the idealization of Google, but it’s wrong, I think, to use that skepticism as a reason to reject Google Print."
Bonus: Paula Hane's blog notes
from last night's Google-brary debate
Update (Oct. 27): Providing balance to the more academic/theoretical musings, IP attorney/uber-blawger Denise Howell offers a typically sharp, street-savvy analysis of the challenges ahead for both sides in the legal battle(s) over the Google Print library project.
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