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.
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.
[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.
Scrivener's Error has an interesting (and harsh) critique of Stallman's essay (Time is of the Essence). Petit of Scrivener's Error focuses on the limited term of patent. He's right about that, but I imagine that a patent on literary works would have a tremendous effect on the market nevertheless. I suspect we would be looking at much more consolidation among publishers, for example. And a market that is much more expensive to enter.
There's a good conversation going on over in the thread replying to my latest screed on the Apple v Does case. I wanted to opine a bit in response to a comment from Seth Finkelstein. He notes that "Journalistic purpose isn't a get-out-of-court-evidence-free card" and that it's a boundary we as society have to draw. He's not arguing where the boundary should be, but I want to, in part because I think the boundary goes right through the middle of me.
(I want to be crystal clear that I'm speaking in this post solely for myself. Not for anyone else who posts here, nor for any other blogger and certainly not for any organization.)
On the one side of this line, I don't think I'm a journalist. In my mind a journalist is someone who reports on, investigates, publicizes events from the world and makes them known to an interested public in the service of making that public informed. I think we American intellectuals agree that one of the ideals of democracy is action and decision taken by an informed public.
But that's not what I do. What I do is point out things other people have done, or said. I give emphasis and weight to what I find worthy, and I push an overt agenda. On this side of the line what I'm doing is much closer to editorial than reportage. What I strive for is less an informed voice than for a sea of voices distinct within the stream of debate.
I don't much like nor respect the current American journalistic notion of "fairness." There are not always two sides to a debate; sometimes there's one or there are many. Nor should a voice be constrained from calling a spade a spade or labeling bullsh*t as bullsh*t. You may notice that the sources I quote from (Cringely, Aharonian, Geist, etc.) are often strongly opinionated. I may not always agree with them, but I respect them trying to take a stand and expand the boundaries of discussion rather than just regurgitating the latest anonymous AP wire item or White House release.
If that's the image, am I journalist? I'd lean towards "no."
But then we get these emails. People read what I write and send me pointers or information. I like getting these emails and I'll often write entries in response to them. If someone mailed me something and asked me to keep their name out of it, I'd do it. Pretty much without thinking. I was brought up watching the Watergate hearings and I believe in the (at least theoretical) power of the press to balance out the powers and expose the corruption of our institutions. I recognize that the ability to have and protect anonymous sources is essential to that function. I believe that any time a reporter gives up a source we weaken the whole structure.
If that's an aspiration, am I a journalist? I'd lean towards "yes."
So, pax Seth. I recognize you're not trying to argue where to draw that boundary. But I think we bloggers had better have this argument, and damned soon.
BoingBoing links to a new "copyright experiment" (Monolith and digital copyright). The software project, called Monolith, takes two digital files and XOR's them (what the author refers to as "munging"), creating a third file. The author calls the two input files "element" and "basis." I think many people might call them "plaintext" and "key." The output file (aka the "monolith" file) would be called the "cryptotext."
The conceit of the concept is that neither the cryptotext nor the key is copyrighted. Thus, it should be legal to distribute both. Otherwise, the author of Monolith claims, everything is copyrighted and nothing can be distributed because there is always a number such that, if XOR'd with another number, will produce a copyrighted work.
This argument is not new and it not terrible interesting. It basically postulates that any encrypted transmission of information is actually not a transmission of information at all.
UPDATE 1330 PT Toehold did the work I was too lazy to do and has a brief history of the concept of evading copyright this way It's still rockin' XOR to me.
Posted over on my blog and on Joe Gratz's blog... you can find the testimony of MaryBeth Peters (PDF), Register of Copyrights, in an oversight hearing this morning before the House Judiciary's subcommittee on Courts, the Internet & IP. A slightly different view of the role of copyright in our society than you usually see here...
However, while Felten's generational distinction is an important one, I'm not sure his theory fully explains what is going on. The main problem I see is that Eric Boorstin's thesis (Music Sales in the Age of File Sharing), which found that internet access correlates with increased music purchases for older people but decreased music purchases by younger people, isn't really about file sharing per se. The disconnect here is that there is no data for the correlation between filesharing and internet access.
I want to clarify that my analysis had very little to do with bloggers who copy headlines. Frankly, I'm one of the few bloggers who almost always uses the titles of stories and posts when I link to them. Look at the above paragraph, through my archive here, Ernest Miller at Copyfight, or my personal blog The Importance Of .... To the extent that I implied bloggers would not get a different analysis, "perhaps," I was expressing my cynicism about the courts and copyright.
As I note in comments to Wendy's post, bloggers are almost certainly situated differently than the case that was apparently decided in Japan. A fair use analysis of a blogger copying newspaper headlines would almost certainly be found to be a fair use. Without going into all possible details, for example,
1) What is the character of the use?
Goes for the defense. Blogging is almost always an example of a core fair use, such as criticism, comment, news reporting, or teaching, and is frequently part of scholarship and research. For most bloggers, the use is also non-commercial.
2) What is the nature of the work?
Goes for the defense. First, there is a question as to what the work is. Generally, bloggers are commenting on the article of which the headline is a title, not simply the headline itself (though sometimes that happens too - see, Wonkette Gay Marriage: Way to Drive the Point Home). This is unlike the case in Japan in which one could argue that it was the headlines themselves which were being used as the content. In the case of the headline as title, the copyright is virtually nonexistent.
3) How much of the work is used?
Goes for the defense. Again, generally the work will be the article, not the headline. The headline is a very small part of the article. Unlike the case in Japan where the headlines were being used as content and the entire headline (numerous headlines) were being copied.
4) What will be the effect of the use upon the potential market for or value of the copyrighted work?
Goes for the defense. Generally, the market effect of commentary and criticism is not really relevant.
Also, as Wendy points out, if a blogger is posting an RSS feed of headlines on their webpage, the fact of the RSS feed indicates an implied license to use them. I'm working on a longer posting about RSS and copyright, but bloggers shouldn't feel chilled to copy headlines for their blog. On the other hand, I still wouldn't feel confident advising a commercial portal to feel entirely free of liability in stripping headlines from a newspaper that told them to knock it off.
Ernie does a fair use analysis of the copying of headlines (below) -- an issue of more than passing interest to bloggers and blog search tools that routinely copy headlines or extract them from RSS feeds (as the Trademark Blog picks up). Defenses of implied license for some uses aside, I think the headline republishers have a stronger case than Ernie credits, because copyright does not protect titles, short words, and phrases (see Copyright Office Circular 34). Thanks to that exclusion, librarians don't have to rely on fair use to list books in card catalogues or their online equivalents, and others than copyright holders can prepare indexes directing readers where to find more information. If the subject matter is unprotectable or only slightly protected in the first place, or if the use is "transformative" -- indexing rather than publishing articles, the "effect on the market" is less important.
