Google Print And Fair Use

[David Farber <dave () farber net>]

Begin forwarded message:

From: Doug Masson <dmasson () well com>
Date: October 25, 2005 3:17:55 PM EDT
To: David Farber <dave () farber net>
Subject: Re: [IP] Google Print And Fair Use


Professor Farber,
For IP if you think it's appropriate.

The discussion of Google Print and Fair Use brings to mind an article I
wrote back in 1995 which was printed in the Indiana Law Journal in 1996:
http://www.law.indiana.edu/ilj/volumes/v71/no4/masson.html

"Fixation on Fixation: Why Imposing Old Copyright Law on New Technology
Will Not Work." It's a gratuitous plug for work I did long ago, but I
think some of it is relevant. I was writing about the potential for a
"digital library" in light of Copyright then in effect (mostly still the
same today) and in light of President Clinton's Information  
Infrastructure
Task Force's Green Paper. They later released a White Paper which was  
much
the same.

The jist of the article which may be of interest to this discussion:

There is little doubt that current copyright law, fairly read, would
prohibit the creation of a digital library wherein most of the world's
knowledge could be accessible from any house, school, library, place of
work, or any other place capable of supporting a computer terminal.

. . .

In a sense, the Task Force's attempt to tighten the reins is quite
understandable. As noted above, copyright law attempts to protect
expression by proxy through its embodiment in the physical world. The
embodiment of expression in the physical world is becoming more and more
tenuous, however, as digital technology grows. The capability to convey
expression from one person to another is fast approaching direct  
exchange
of thought without embodiment of an intermediate physical form. Or,  
at the
very least, if the previous description seems too transcendental, the
intermediate form of expression is becoming "liquid" where previous and
current copyright law deals with a solid.

One can view the Task Force's recommendation as akin to attempting to  
hold
on to a melting object; one clutches it more tightly in a vain  
attempt to
prevent it from falling to the ground. As John Perry Barlow puts it:

Since we don't have a solution to what is a profoundly new kind of
challenge, and are apparently unable to delay the galloping digitization
of everything not obstinately physical, we are sailing into the  
future on
a sinking ship.

This vessel, the accumulated canon of copyright and patent law, was
developed to convey forms and methods of expression entirely different
from the vaporous cargo it is now being asked to carry. It is leaking as
much from within as without.

Legal efforts to keep the old boat floating are taking three forms: a
frenzy of deck chair rearrangement, stern warnings to the passengers  
that
if she goes down, they will face harsh criminal penalties, and serene,
glassy-eyed denial.

. . .

The law needs to adapt and embrace new technology, not become more rigid
and try to withstand it.  As the Court recognized in Sony:

From its beginning, the law of copyright has developed in response to
significant changes in technology. Indeed, it was the invention of a new
form of copying equipment--the printing press--that gave rise to the
original need for copyright protection. Repeatedly, as new developments
have occurred in this country, it has been the Congress that has  
fashioned
the new rules that new technology made necessary.

. . .

It is time for the law to recognize properly the media which it attempts
to govern. If the law remains unchanged-- attempting to govern as solid
that which is essentially liquid--it will have to create an unnecessary
and inexcusable scarcity of access to copyrighted works in order to  
work.
This is so because current copyright law is premised upon a need (a need
which is becoming less pronounced) for works to manifest themselves
tangibly before communication between people is possible.

. . .

 Digital technology has created vast new possibilities, many of them
unexpected. Among these unexpected possibilities are means to effectuate
the wide dissemination of information--a desirable turn of events for  
any
society which prides itself on democratic ideals and a well-informed
populace. Unfortunately, laws made in light of past technologies  
stand in
the way of maximizing the benefits of future technologies. Specifically,
the Copyright Act of 1976, which attempted to legislate for the future,
did not foresee and therefore did not provide an adequate mechanism for
the potential created by digital technology. As a result, the Task  
Force,
attempting to make recommendations for the new developments, looked  
toward
the already antiquated Act and made recommendations which failed to
further the ends of the Act and the Constitution. These recommendations
also do not serve the purpose of the copyright--to provide the economic
engine for the creation and dissemination of ideas.(124)

The Act and, consequently, the Task Force, are inadequate because they
both relied on the premise that works have to manifest themselves
physically in order to be communicated. This premise is becoming less
frequently true, and mistakes made in domestic laws are spread  
throughout
the world by virtue of international intellectual property treaties as
well as by perpetuating the paradigm of fixed copies. Future  
intellectual
property law must recognize the increasingly flawed nature of that
premise.


_____________________________________________________
Doug Masson             There is no windchill
dmasson () well com           at absolute zero.
Weblog: http://blog.masson.us/



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