more on An author's dissent on Google Print

[David Farber <dave () farber net>]

Begin forwarded message:

From: Karl Auerbach <karl () cavebear com>
Date: October 30, 2005 4:35:47 PM EST
To: Cindy Cohn <cindy () eff org>, David Farber <dave () farber net>
Subject: Re: [IP] more on An author's dissent on Google Print
Reply-To: Karl Auerbach <karl () cavebear com>




> From: Cindy Cohn <cindy () eff org>
> Date: October 30, 2005 1:55:01 AM EST

Hi Cindy!  Angle of Repose - Good book (and part of it is set here in  
Santa Cruz.)

Getting onto Google:

My own analysis is pretty simple (minded?):

1. Has a copying occurred?

2. Is the copying permitted by an implied or actual license?

3. If not licensed, is the copy covered by "fair use"?

As for question #1, there is no doubt that a full and complete copy  
is being made.  Every word, photograph, and drawing is being copied.

(Note - there are other ways in which this could be done in which a  
copy is not made.  For example, Google could provide tools to  
libraries to do the scanning/indexing on their own facilites and send  
the results, and only the results, to google.  That would be the the  
penultimate kind of opt-in [the ultimate being that they send  
physical copies to google.])

As for question #2.  I think that we all agree that this is a  
question that only exists in the absence of an express license  
permitting or denying copying.  Brad seems to have hit the nail on  
the head by recognizing that this is really a question of opt-in vs  
opt-out for works that have no explicit license and for which it is  
difficult to locate the copyright owner and ask him/her for permission.

That said, I'd like to point out that the absence of a robots.txt  
file containing a prohibition does not, to my mind, constitute a  
license to copy.  The copyright laws used to require the old circle-C  
marking, but that has been removed and replaced by a more liberal  
policy of making all works copyrighted the moment they are affixed to  
a medium.  A robots.txt file is merely a technical convention known  
only to a few cognsecenti.  It is not recognized (yet) by copyright  
law as constituting a license (or prohibition).  And, from my point  
of view the worst feature of robots.txt, is that it does not move  
with the work, thus creating an ambiguity when the work reaches the  
next tier or recipient - that person (and all his/her sucessors) do  
not get the robots.txt file.  Are we creating some sort of bona fide  
purchasor situation for copyrighted works that are copied without  
their associated (if any) robots.txt file?

A while back I started putting a Creative Commons license on most  
(but not all) things I write.  That practice is, I believe, the right  
way to go as it is very explicit about what my intentions, as  
copyright holder, are.

I, like many others, am concerned about the fate of orphaned works  
and I believe that the answer ought to be in the hands of a  
legislature rather than by bold assertions by search engine companies.

As for question #3, I personally don't find "fair use" in Google's  
copying.  Others come out on the other side, often based on the  
(admitted) huge social value that arises from these indexes.

There is no doubt that web indexes are a valuable contribution.  And  
I believe that most authors would chose, if presented with the  
question, decide to participate.  (I also believe that if most  
authors were presented with the question that eventually there would  
evolve some sort of regime in which assent was assisted by a taste of  
the monetary action that the search engines generation - whether that  
happens would be a matter of free economic interchange that is very  
unlikely under the unilaterial and unnegotiated take-without-asking  
regime of today.)

The "fair use" exception to copyright generally is for uses that are  
grounded in altrustic motives (money can be made, but it seems that  
making money should be subordinate to improving the public weal.)   
And google is hardly an altruistic organization; it's board members  
and officers could find themselves rightfully at the wrong end of the  
stick if they should subordinate shareholder value to the improvement  
of the internet.

Moveover, "fair use" seems to encompess transformative and derivative  
uses that involve the exercise of the human mind to refine, analyse,  
or reflect upon the principal work.  Google does not have that  
characteristic - it is really nothing more than a mindless and  
mechanical conversion of the words and phrases of a work into an  
inverted index.

I worked for several years as a bibliographer for a work on the  
biochemestry of aging.  The index and list of references that we  
created required me (and the professors I worked for) to read every  
work to pull out the principal thoughts and concepts and to assess  
the credibility of the work.  To me that's the kind of thing that  
fair use is all about when we talk about constructing indices.

And it seems that the card-catalog analogy is inappropriate because  
we are talking about a copying that creates far more than merely a  
card in a traditional card catalog.  We are talking about a system  
that creates a large body of meta-information, the word(phrase)-to- 
document/URL data, that does not exist for a card catalog that is  
indexed merely by author, title, and library coding system number  
(which implies a bit, but not much more, about the subject matter.)

By-the-way, we are all ignoring the elephant in the corner - the fact  
that google routinely retains (and makes available to the public)  
full copies of the original works in its "cache".

My bottom line is that this the law of copyright seems a bit  
disconnected from the actual intention of people and from the new  
social reality of the internet.  (Nothing new about the disconnect.)   
But it seems that the answers need to be worked out not by unilateral  
action by search engine companies (although that is useful to set the  
stage for discussion) but rather through debate and ultimately by  
legislation.  (In this case, because we are going to have  
intellectual property interests on both sides of the debate, I'm not  
as concerned as I might be about the too often occuring abandonment  
of the public interest by the legislature as it awards the prize to  
the side that makes the greatest financial contributions and has the  
most expensive lobbyists.)

        --karl--




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