Re: .Google, library books, Usenet, and copyright

[David Farber <dave () farber net>]

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Subject:        Re: [IP] .Google, library books, Usenet, and copyright
Author: "Perry E. Metzger" <perry () piermont com>
Date:           14th December 2004 1:06:54 pm


Edward Hasbrouck <edward () hasbrouck org> says:
> Google's unauthorized for-profit electronic re-publication of "cached" 
> copies of Web pages has always been copyright infringement.

Er, sorry, but that's far from clear. I would strongly argue it is
fair use.

> Google's new moves, however, greatly expand its copyright infringement:
[...]
> This is copyright theft and for-profit online bootlegging by Google.


They will only be making full texts available for books out of
copyright. As for the rest, it can be argued that it is hardly worse
than libraries letting people borrow books in the first place. The
system is designed to let people search and find texts, not to read
them. The mere placement of ads next to search results can hardly
constitute a violation of fair use. Mr. Hasbrouck also complains that
Google's republication of Usenet archives with ads attached does not
constitute "fair use", even though it is fairly obvious that without
such a system the archives would be entirely unavailable and even
though there is no obvious economic loss to the people who's postings
are made available. Mr. Hasbrouck also expresses a bizarre notion of
"fair use" in which a use is not "fair" if it makes a profit -- as
though books quoting other books have only been given away until now
and never sold for profit.

I do not see legally how Mr. Hasbrouck's narrow conception of "fair
use" could hold up, but if it did, it should not. I will explain why.

Mr. Hasbrouck is expressing what I would call "copyright absolutism"
-- the notion that copyright and other intellectual property are
inviolable and that they exist as a natural right of the owners. We
must tread carefully, according to such a viewpoint, because the
paramount concern must be the preservation of intellectual property,
rather than the public interest.

Nothing could be further from the truth. Copyrights and patents exist
in our system of laws as a concession to writers and inventors to
encouraging their work, but they have always had substantial
limitations and have been historically construed as a way of
benefiting the *public* by encouraging new work, not as a way of
providing a permanent form of property to the creators. Read the
U.S. Constitution if you need evidence for that.

I honestly cannot see any way that Google's new efforts hurt the
public -- indeed, what they are doing seems like a nearly pure
benefit. If you have to read a few unobtrusive ads but can then search
mounds of books to find out which ones contain the information you
need, that seems like a pure win. Sure, you can game the system with
great difficulty, but you can borrow books from the library right now
if you want to avoid paying for them.

The public will not be benefited by construing all rights to
intellectual property in favor of the holders and against the
public. I do not think current law can be reasonably read that way,
but if it could, it should be changed.

If we do end up reading intellectual property law in the narrow way
Mr. Hasbrouck suggests, I suspect we will someday end up with the
nightmare scenario in which libraries are banned as copyright
infringement tools, all commercially available text can only be
displayed via DRMed readers produced by a tiny number of licensed
companies, publishers will prevent people from freely re-reading
books, lending them or re-selling them, text will not be able to be
legally quoted, and the ability to read freely without being treated
as a potential criminal throughout the process will effectively end.


Perry

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