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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.

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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

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October 31, 2005

Speaking Volumes, Part II

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Posted by

Tim O' Reilly has excellent one-stop shopping for this weekend's debate about Google Print library on Dave Farber's IP list. Here, a snippet that's helpful for explaining what the Authors Guild and publishers are asking for in the name of copyright (hyperlink, mine):


Google is making it possible for us to find books we want to buy (or borrow from the library, which isn't a crime just yet). Google is not letting us read books for free. Not even close. Does anyone really think that someone who wanted to read Angle of Repose would instead use Google Print and decide that the snippet of Stegner was sufficient?

So what are the Authors Guild and the publishers complaining about? They're complaining that Google hasn't offered to share the profits that might accrue thanks to ads Google may someday display, or that are attributable to the marginal increase in general Google traffic. But on what basis do they claim entitlement to that brand new revenue stream? The money is not based on the public copying the book -- which is what copyright protects against -- it's based on the public FINDING the book in the first instance.

Now I suppose that the Authors Guild folks want to claim that they should get a share of any way of making money related to locating their works. That's an interesting argument, but it's not a copyright claim. If copyright owners approached libraries and demanded a share of library funds because of the existence of the card catalog it would be difficult to stifle the giggles. Yet isn't the same thing going on here? Stealing an analogy from law Prof Tim Wu, we have never given real property owners the right to "opt out" of any mechanism that helps people find their property -- maps. That's just not in the bundle of rights you get when you buy a home and preventing location tools is also not in the bundle of rights that come with copyright.


Two previous relevant Copyfight posts: A Copy Is As a Copy Does and Speaking Volumes. Also see Google's Tough Call -- Larry Lessig's .02, now available online.

Comments (3) + TrackBacks (0) | Category: IP Use


COMMENTS

1. Michael Jensen on October 31, 2005 2:23 PM writes...

See Presses Have Little to Fear From Google (July, Chronicle of Higher Education), for some other experience-based analysis from a publisher.

The National Academies Press (http://www.nap.edu) has had Google Print-like page display (for every page, not just 10%) since 1995, and can point to increased sales during the time we were only displaying page images. As we improved the online interface, things have levelled off, because the online experience now often supplants the need to purchase the book.

That said, our experience indicates that attracting a potential interested reader -- being findable -- is what is most important in the networked world, at least for a publisher like us. Further, what Google is proposing looks to me like a fabulous marketing tool for the publishers.

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2. Karl-Friedrich Lenz on November 1, 2005 6:50 AM writes...

Whoever wrote that snippet above needs to realize that it is Google's use in question here, not the public's.

Google is copying the whole book, even if not all lines in the same search result report. If they have 1000 people searching and display the whole book to these 1000 people, Google is using the whole text in the aggregate, even if each individual user only gets a couple of lines.


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3. Donna Wentworth on November 1, 2005 1:33 PM writes...

The author of the snippet is Cindy Cohn -- I've added a link now (I ought to have included it to begin with, so I'm glad you pointed out the lack of attribution).

Here's what Cindy has to say about using the whole work:

"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."

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