more on An author's dissent on Google Print

[David Farber <dave () farber net>]

Begin forwarded message:

From: "David P. Reed" <dpreed () reed com>
Date: October 30, 2005 4:06:31 PM EST
To: dave () farber net
Cc: Ip Ip <ip () v2 listbox com>
Subject: Re: [IP] more on An author's dissent on Google Print


It's worth pointing out that the tactic of attacking Google by trying  
to extend the law of copyright to include the act of making a copy in  
order to creating an index is quite similar to many other tactics we  
see every day.

Manipulating the courts and Congress by misguided analogies and  
metaphors is rampant.

Each author gets a bundle of rights when a work is fixed.   That  
bundle of rights is tradeable.   That's why they are called property  
rights - they can be traded and licensed.    Occasionally, new rights  
are created as part of the bundle.   For example, the concept of a  
"performance right" was created for some copyrighted subject matter -  
not because a performance is a *copy*, but because the Congress  
thought that it ought to reward the creators of scripts for acts that  
didn't per se amount to creating a copy of the script.

New technologies certainly give the opportunity to create new  
rights.   The "right not to appear in an index" would almost  
certainly be a new right.   Such a right would allow authors to  
control whether they could be kept in a card catalog, or assigned a  
place in the Dewey Decimal system, or be given an ISBN.

Should such a right be created?   Does Google's commercial success  
warrant such a protection?   It may be that the world as we know it  
will fall apart if Google becomes the dominant content-based index of  
the Web and printed matter of all kinds.

Is there really a sensible difference between indexing by a profit- 
making entity and indexing by a non-profit that pays salaries to the  
same number of employees?   Monopolies are not illegal in this  
country.   They are merely barred from certain strategic actions that  
non-monopolies are allowed to engage in.   Is making an index in the  
scope of the behaviors that a monopoly is not allowed to engage in,  
should Google be determined to be a dominant monopoly in its market?

Note that if the Authors' Guild starts behaving like a monopoly on  
authorship, it is barred from certain acts as well.  Similarly with  
publishers.

There is very little that is crystal clear here in the legal front,  
except to demagogues and the self-interested.   What seems clear to  
me, though, is that indexing is not copying, and in addition, it is  
quite reasonable for Google to construct an index without ever fixing  
a copy of *any* work in its memory store.

On the technical front, the notion that Google is copying in the  
sense that copyright means is hardly obvious, either.  If Google  
provides a facility for reconstructing a quote on demand, it is  
hardly clear that a facility for reconstructing a quote on demand is  
itself a copy.   I can quote the Lord's Prayer on demand, but I don't  
believe that the contents of my brain contains a copy of that prayer  
in any legal sense (wouldn't it be fun if we could use the copyright  
law to block testimony about any person's utterances in public  
because they "have been illegally copied into someone's brain").     
Similarly, the transmission of a fax makes a copy, but the vibrations  
of the electromagnetic field on an oscilloscope monitoring the  
transmission for line quality is NOT a copy, nor does it depend on  
"fair use".   It's just outside the copyright law entirely, as is the  
mechanism for indexing.

It seems to me that the creation of a *new* right, one that has never  
been needed before, ought to be carefully considered by Congress and  
the American people.  And that's why it's worth having this debate  
with all interested parties, not just the self-interested authors and  
publishers, who never met a new right they didn't need, and never saw  
a rights term-extension that wasn't essential for stopping impending  
economic doom for the entire US economy.  :-)

Let's be honest - maybe we do need a new right.   But let it be for a  
compelling reason!   Not just because K-street sees another  
opportunity to exploit its access to the corridors of power and get  
paid a few million bucks.

Playing verbal games with analogies, metaphors, and clever, but  
ultimately false and spurious satirical arguments seems silly.   The  
reason "Anonymous" wrote the satire I passed on, and that Dave was so  
kind to have included in his column was to illuminate the ridiculous  
and inane properties of such analogies and metaphors, especially when  
carried out by people who should know better.   Anonymous writers of  
satire can only provoke people to think more critically about their  
own positions, since they cannot be taken seriously on the face of  
their writing, whose very provenance is disavowed.



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