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November 14, 2005

On the (Neglected) User in Copyright Law

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As if on cue in preparation for today's Picker MobBlog on the place of "the user" in copyright law (yes, folks -- that's you and me), Cindy Cohn on Friday offered a few bon mots on the Google Print Library Project:

I think that if the debate gets framed as a binary choice between authors and publishers on the one hand and Google on the other, it would be a shame. There is another interest here -- those of "us" who are trying to find the right thing to read. I submit that we "book searchers," more colloquially known as "readers," are an important part of this debate and that Google isn't really the same as us.

Whatever else one thinks about Google Print, it is unequivocally good for readers. I submit that allowing authors and publishers to control who or how easily we can find their works by controlling the search tools available to readers is unfair to "us."

Georgetown University law professor Julie Cohen, whose paper forms the basis for the MobBlog discussion, argues for a definition of the user in copyright law that better captures her role in copyright's "larger project" -- promoting the progress of knowledge.

It's a much-needed reminder: conflicts over copyright don't involve only the plaintiff and the defendant. If copyright is about promoting "the progress of science and the useful arts," it's also about us.

Comments (12) + TrackBacks (0) | Category: IP Use


1. Siva Vaidhyanathan on November 14, 2005 5:45 PM writes...

I have to take issue with Cindy on this. Google Library is not unequivocably good for readers.

In fact, if offers reader many bad things, including privacy threats, excessive DRM, poorly executed and absurd search results, and the illusion of precisions and objectivity.

So while the publishers association and the authors' guild are being disingenuous about the threats this project seems to present to them, we are being disingenuous by allowing Google to get away with its claims to work for us or what we believe in.

Let's stop taking sides in this binary and hold Google accountable for free riding on not only the copyrights at stake here (not a serious problem) but the public expenditures that went into assembling these vast collections of books.

What are we demanding of Google? What should we demand of Google?

Permalink to Comment

2. Nancy Prager on November 14, 2005 9:23 PM writes...

I, too, think Cindy Cohn is too quick to support Google Print as being a positive for readers. But I do not think publishers are being entirely disingenuous in their concerns about Google Print.

Copyright has always been a balance between the proprietary interests of the creator (or patrons) and the public interests. Google does not propose Google Print to further Carnegie's mission when he created libraries throughout the USA (or similar projects underway now in the developing world). According to the GoogleBlog on October 19, 2005, the reason Google stands behind this project is "that this program ... is crucial to our company's mission." David Vise of the Washington Post has written a book about the mission of Google. Here is a link to Vise's opinion in yesterday's WaPo:

And let's say that Google was approaching this project philanthropically as Carnegie did, libraries pay for books. Most libraries are not really free. That is, as somebody has to pay to upkeep the library and for the books on its shelf, access is generally restricted through some manner (i.e. you must live in a city, attend a school, pay a fee if you don't live in the city or attend the school) There are even "libraries" to which you can pay to "check out" a protected works... like movie and audio book rentals.

Also, the publishers have a valid point that nobody other than the owner of a copyright has the right to authorize the distribution, duplication or broadcast of protected works unless either the Common Law or statutory fair use standards are met. The publishers or other owners of the copyright are the appropriate parties from whom authority can be granted to distribute, duplicate or broadcast the materials in the library, not the libraries themselves.

Someone asked me if I would ever print an entire book using Google Print. The honest truth is yes, yes I would. From legal treatises to beach novels, I would love the convenience of being able to print off books in the convenience of my own home. The beach books are one time reads, and legal treatises can be hole punched as easily by me as CCH or BNA.

If GooglePrint wanted to provide a service like the pay to download music services, I have a feeling that everybody would be happy.


Permalink to Comment

3. Donna Wentworth on November 14, 2005 11:28 PM writes...


It's my fault you're interpreting Cindy as not demanding enough of Google -- I didn't include the entirety of her email, which concludes: "still not sure why I cannot resist this topic
and happy to discuss other issues where we think Google is wrong:"

I can't speak for Cindy, of course, but I think her email is about why it's important for Google to stand up for fair use in this instance because of what fair use means for "us" -- for readers and for society as a whole. We all stand to benefit enormously if people (at libraries or companies) can continue to create meta-information about books that helps people find books. It seems to me you have separate concerns about Google, but you and Laura Quilter have talked that issue through; I won't repeat the conversation here.

I don't think anyone here is interested in "taking sides" in a binary. We simply disagree about this project.

Permalink to Comment

4. Nancy Prager on November 14, 2005 11:33 PM writes...

Wow. I am new to this site but am really curious how Google Print qualifies as fair use under either the Common Law analysis or the statutory elements.


Permalink to Comment

5. Donna Wentworth on November 14, 2005 11:47 PM writes...

Hello Nancy,

Here are some resources that should help you out. For clarity, note that we're discussing the Google Print Library Project, not Google Print:

Permalink to Comment

6. Joseph Pietro Riolo on November 15, 2005 5:38 AM writes...

To Siva Vaidhyanathan:

There is nothing illegal that Google is doing. If
you don't like what Google is doing, just write a
letter to your congress people and tell them to
change copyright law to prevent Google and any other
present and future companies from doing what Google
is doing now.

Not everyone agrees with the bad things that you
listed. If people are very concerned about their
privacy, they just don't use Google. Your complaint
about illusion of precisions and objectivity is just
nothing. How is it any different from any other
indexes, abstracts, summaries and reviews out in
the world?

To Nancy Prager:

Making a copy of book for library is permitted by
Section 108(a) in the U.S. copyright law (there is
no more "Common Law" for copyright in the U.S.).
Making an index to a book is permitted by "supplementary
work" in Section 101. Showing a snippet of book
is permitted by Section 107. What is disagreeable
is the number of snippets from a book.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Permalink to Comment

7. Nancy Prager on November 15, 2005 8:56 AM writes...


Thank you. I will read the analysis to which you have guided me. I will respond after I have reviewed the theories.


Um... I am drawing a distinction between the common law and statutory definitions of fair use because under Sony the Supreme Court recognized that even though the Copyright Act of 1976 defined fair use, the common law concept of fair use remains. What is debatable is what constitutes "fair."


Permalink to Comment

8. Von Fugal on November 15, 2005 3:33 PM writes...

Nancy: I really hope you haven't actually read Google's mission statement to contrast it the way you did with Carnegie's mission.

Carnegie: The mission of the Carnegie Library of Homestead is to inspire the mind, enhance the body, and bring delight to the spirit of our community.

Google: Google's mission is to organize the world's information and make it universally accessible and useful.

Looks to me like both are interested in "the progress of science and the useful arts" and in the spirit of this article, both are interested in "us." And I applaud vivaciously.

I read the linked article about Google's mission and I laugh. I don't know if it's trying to make Google sound evil; it seems like it might be. It just makes me happy. Google does push the envelope. Google does test the limits. Google has "a healthy disregard for the impossible." Google innovates, Google creates, Google makes us all richer, Google makes progress. It's the paragon of advancement.

If you're still reading, thank you, and I disclaim: I don't believe that Google is always right nor blindly place trust therein. Google is increasingly in a position to do evil. I think it's great that Google is being checked in it's actions, even though I side with Google print.

Von Fugal

Permalink to Comment

9. Siva Vaidhyanathan on November 16, 2005 3:08 PM writes...

I did not say Google was doing anything illegal. That was not my point.

However, I am confident that Congress has already spoken to this issue. I don't agree with Congress. But that happens all the time.

So again, I ask: what should we demand of Google?

Permalink to Comment

10. Donna Wentworth on November 16, 2005 5:43 PM writes...

You're saying you believe Google has a fair use right to create meta-information about books, but you would like to have a discussion about the other things that worry you about the project. Is that right? (I'm not sure what you mean about Congress.)

Permalink to Comment

11. Siva Vaidhyanathan on November 18, 2005 8:54 PM writes...

Congress is clear:

"ยง 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;"

To make this right paramount is an expression of copyright fundamentalism. Congress is clear on this. Congress did not speak on the exception derived from Kelly v. Arriba Soft. Only the 9th Circuit has.

So, to be clear: I agree with the 9th Circuit in Kelly.

But please recognize that Congress has tended to be fundamentalist in recent years. So has the 2d Circuit. So has the Supreme Court.

I am convinced Kelly will not survive this conflict because the 2d Circuit will rule Sec. 106 will trump Sec. 107 and any other public interest argument (as it did in Tasini v. New York Times and in several other cases).

Therefore, my side (and your side) will lose because Google is gambling with our scant and disputed fair use rights.

That being said, it is gambling away our rights for the sake of a flawed project that relies on some very bad things: bad privacy policies and practices, bad DRM, bad (and secret) search algorithms, and bad faith.

The project itself is not nearly as great for research as everyone seems to pretend it is. However, it is very bad for copyright law and users' rights.

Oddly, the project is not bad for publishers or authors. It might be good for them.

I just don't understand why the people who should be criticizing Google for using DRM and proprietary code to restrict access to material that we all paid for are cheering on the company while the parties that should be cheering on Google (publishers and authors) are suing it.

We live in strange times.

I have a long article coming out in the Chronicle of Higher Education just after Thanksgiving. I will blog it when it comes out.

Permalink to Comment

12. Joseph Pietro Riolo on November 19, 2005 8:46 AM writes...

To Siva Vaidhyanathan:

Even if you have a list of demands, Google is not
under any obligation to satisfy your demands.
Then, how are you going to make Google satisfy your
demands without the support from law?

Since you asked the question on what we should demand
of Google, you should start listing the demands. Then,
we can discuss on the demands.

In your reply to Donna Wentworth's comment, you are
confusing bad things with legal things. What Google
is doing is still legal unless shown otherwise. That
may be a bad or good thing, depending on how people
see it. That still does not change the fact that it
is still legal thing to do. Some people may think that
Google is evil and that is their business but telling
Google what not to do even though it is still legal
simply does not work.

Unlike your passivity, Google decided to be bold and
test the boundary of fair use and other contours of
the copyright law. Why is that so wrong? It is much
better to know what copyright allows and disallows
than to live with the ambiguities forever. If the New
York court shows that what Google is doing is not
permissible under the copyright law, then we and
present and future companies will know what is not
allowed and can make proper plans.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

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