more on legal points djf An author's dissent on Google Print

[David Farber <dave () farber net>]

Begin forwarded message:

From: Cindy Cohn <cindy () eff org>
Date: October 30, 2005 5:12:43 PM EST
To: dave () farber net
Subject: Re: [IP] more on An author's dissent on Google Print


Dave,

One last message to clarify some of the legal cases and doctrines  
that have been thrown around.

The MP3.com case will certainly be cited by the parties.  I think  
it's distinguishable because MP3.com was offering the whole work to  
its users (via streaming if I remember right), not just snippets.   
MP3.com wasn't about finding works, it was about letting users  
experience the whole works.  Google is about finding works and they  
only let you see snippets (I think Lauren worries that Google is  
going to do more than that and my view is that if the evidence proves  
that the facts are different than Google claims, then we need a  
different analysis, but I don't think the current lawsuit is based on  
fears that Google will do more than offer snippets).

The case that will be relied upon by Google, likely,  is Kelly v.  
Arribasoft:
http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/
That had to do with searching, like this, and in it the 9th Circuit  
held that making thumbnails of bigger works for purposes of an image  
search engine was fair use.  No doubt the AG and publishers will  
argue that Kelly can be distinguished, but I submit that on its  
facts, it's closer to what Google was doing than the MP3.com case --  
making copies that help the public find works rather than replacing  
the experience of a work.

As for the assertions from some that copyright law flatly prevents  
copying of an entire work, that is just nonsense.  See 18 U.S.C. 107,  
for the listing of the 4 factors. Nothing in the fair use doctrine  
prohibits a finding that use of an entire work is fair. Sony v.  
Universal City Studios, 464 U.S. 417, 450 (1984). The amount of  
copying is a factor in the fair use analysis, but it's only one.  In  
fact, it's not even the most important factor.  The courts have  
pretty uniformly said that the most important factor is the effect on  
the market for the work and here my assertion is that no one can  
seriously argue that a Google snippet is a substitute for purchasing  
a whole book.

BTW, as the citation above demonstrates, if copying of the entire  
work was per se infringement, the Betamax case would have come out  
the other way.  You make an entire copy when you use your VCR.   
Another case that would have come out another way is the OPG v.  
Diebold case which I won last year, where students at Swarthmore  
copied an entire email archive owned by Diebold and posted it on  
their website to demonstrate that Diebold knew about flaws in it  
electronic voting machines.  Again, the court found fair use despite  
the fact that the students copied the entire work, and Diebold ended  
up paying EFF and our clients a total of $125,000, for falsely  
representing that the archive was infringing to the ISP hosting the  
website.

Cindy




On Oct 30, 2005, at 12:30 PM, David Farber wrote:


> Begin forwarded message:
>
> From: Sid Karin <skarin () ucsd edu>
> Date: October 30, 2005 1:15:23 PM EST
> To: dave () farber net
> Subject: Re: [IP] more on An author's dissent on Google Print
>
>
> Dave,
>
> I believe that this aspect of argument is exactly the basis
> for the (very similar) MP3.com case.   They *bought* an
> extensive library of CDs and made them available on line only
> to users who could show that they had legitimate copy of
> their own.  They *lost* in court, and *lost* on appeal in federal
> circuit court.  It's my understanding that the reasoning was that
> they simply didn't have the right to make the digital copies.
>
> I've been surprised to see no reference to this precedent
> in any of the discussion to date,  on IP and elsewhere.
> But then IANAL....
>
>     Cheers,
>
>         ......Sid
>
>
>
>
>
>
> > Begin forwarded message:
> >
> > From: Tim O'Reilly <timoreilly () gmail com>
> > Date: October 30, 2005 12:36:47 PM EST
> > To: dave () farber net
> > Subject: Re: [IP] more on An author's dissent on Google Print
> > Reply-To: tim () oreilly com
> >
> >
> > On 10/30/05,  David Pakman <david () dimensionalassociates com> wrote:
> >
> >
> >
> > > This cannot be fair use because, among so many other reasons, the  
> > > copier
> > > is a COMMERCIAL entity actually making money by selling advertising
> > > around the copied works.
> >
> > Dave, in response to this argument, it should be pointed out that  
> > the New
> > York Review of Books or the NY Times book review section are also
> > "COMMERCIAL entit[ies] actually making money by selling advertising
> > around the copied works."  Next time you read a book review (also
> > intended to help sell books and help people to find them), not the
> > extensive use of quotations from the book, surrounded on all sides
> > by advertising.
> >
> > This argument, in short, is a complete canard.  And it's the dirty  
> > little
> > secret behind both the Author's Guild and AAP suits.  I've talked to
> > board members of both organizations, and while the talk is all about
> > copyright principle, before long, a note of envy, which soon swells
> > to an unmistakable whine, creeps in.  Google is making so much
> > money.  They'll make even more money here.  We ought to get a
> > piece of it.
> >
> > And this despite the fact that the works that are causing most of
> > the controversy are those in the "twilight zone" of publishing:  the
> > 60-odd percent of works that are neither in the public domain nor
> > in active commercial use.  No one's arguing about the public domain
> > works, and many of the commercial works are being opted in --
> > and do in fact create an opportunity for an author or publisher to
> > profit from Google's use of them.
> >
> > These numbers are based on a recent study by the Online Online
> > Computer Library Center, which analyzed the books in the collections
> > of the five libraries participating in the Google Print for Libraries
> > project.  By their figures, only about 20% of the 10.5 million unique
> > titles in the collections of the five libraries working with Google
> > are out of copyright, using the 1923 change in the copyright law as a
> > dividing line before which you can assume books are out of copyright.
> > Meanwhile, another 10-20% are under copyright, in print, and being
> > commercially exploited. This is the realm of titles opted in by
> > publishers to programs like Google Print or Amazon Search Inside the
> > Book. That leaves 60-70% of all titles ever published in the twilight
> > zone, out of print, but still under copyright. For many of these
> > books, no one even knows any longer who owns the rights, and there is
> > no commercial incentive to figure it out, making the publishers'
> > request for "opt in" a fig leaf that will ultimately lead only to
> > continued neglect.  Google Print for Libraries brilliantly cuts the
> > Gordian knot that keeps these works in obscurity, creating an  
> > economic
> > incentive for publishers and authors to assert their rights in the
> > event that readers rediscover their value.
> >
> > The OCLC study is at
> >
> > http://www.dlib.org/dlib/september05/lavoie/09lavoie.html
> >
> > I've written some more about these numbers at
> >
> > http://radar.oreilly.com/archives/2005/10/ 
> > oca_vs_google_print_library_pr.html
> >
> > ________________________________________________________
> > Tim O'Reilly, CEO O'Reilly Media
> > 1005 Gravenstein Highway North, Sebastopol, CA 95472
> > 707-827-7150; fax 707-823-9746
> > http://www.oreilly.com; http://radar.oreilly.com; http:// 
> > tim.oreilly.com
> >
> >
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> --
> ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
>      Sidney Karin, Ph.D., P.E.       858-534-5075 (voice)
>                                           858-822-5443 (fax)
>                                             
> skarin () ucsd edu                                             Professor,
>      Department of Computer Science and Engineering
>      Director Emeritus
>      San Diego Supercomputer Center
>      University of California, San Diego
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>      La Jolla,  CA  92093-0505
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>
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********************************************************
Cindy Cohn                     ---- Cindy () eff org
Legal Director                     ---- www.eff.org
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333 x108
(415) 436-9993 (fax)



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