That Was Sarcasm, Right?

I’m having trouble following Siva’s reaction to Google’s pausing its Google Print program.

Siva is quick to point to fair use cases counting against Google –
that’s odd, considering that in many contexts he would readily
criticize bad strands of copyright caselaw.  Google Print is
making intermediate copies of the entire works in order to display a
few pages from those books.  With respect to books under
copyright, the entire book is not displayed.  Is Siva saying that
any intermediate copying of an entire work by a corporation is
unfair?  What would that mean for reverse engineering?   It’d
be an admittedly tough case for Google to win, but I’m not so sure that
Google actually is dead in the water under caselaw.  If it is, I
don’t think it ought to be.

Regardless, the caselaw doesn’t amount to what Siva implies it does.  Though it’s only a
brief citation, it seems Siva seriously misreads American Geophysical Union v.
Texaco
.  The court didn’t rule against Texaco because it was a
corporation. In fact, the appeals court specifically disagreed with the
district court’s “undue emphasis” on the for-profit nature of Texaco.

In the end, Texaco’s copying of research papers for achival was found
unfair under the first factor, for reasons closely connected to the
fourth factor (market impact).  And, on that point, I’m not sure
what Siva’s applauding.  This case followed a broad reading of the
works’ potential market so that it includes any
“traditional, reasonable, or likely developed markets.”  That does
not comport with Sony‘s
more constrained reading of this factor – it certainly seems
“reasonable” that the television program copyright holders could and
would develop a market that time-shifting undermines.  The court
also suggested that if the copyright holder is offering licenses for a
use, then that’s a developed market.  This is one
case in the dangerous, gradual expansion of this factor – see Mp3.com and Napster.

In American Geophysical Union, the court did note that the first factor (and thus the fourth, at least under Sony)
was more likely to be considered
fair under the first factor where it “produces a value that benefits
the broader public interest.” Reverse engineering would fit that
category; Texaco’s didn’t.  It seems that it is here that Siva
seriously takes issue with Google. 

We can put aside caselaw and go to straight-up normative analysis –
Siva thinks that this Google Print is bad, bad, bad.  What I see is gross
hyperbole.  What Google’s doing is nothing like widespread
infringing file-sharing on P2P.  Sure, they’re copying the entire
book, but they’re only providing small selections.  I don’t see
how that amounts to a “copyright meltdown.” (I know that you can try to
do different searches to over time accumulate the whole book, but
Google does enough to frustrate that, I think.)

Libraries good, corporations bad doesn’t ring true for me. 
Without a doubt, I’m glad that people are becoming more skeptical of
Google, despite their “we’re not evil” mantra.  However, in this
case, Google was providing an important public service, one that
happened to benefit the company commercially, but one that also did not
pose a serious threat to copyright holders (in fact, it probably would
help them), and for those reasons I think Google Print should be lawful. 

As
Jason put it: “This is a clear example of copyright failing the public in the digital
age. Google isn’t selling the books; they just need to scan them to
help Internet users find what they’re looking for. The fact that
publishers are able to hold up this process works against consumers and
the marketplace, not in their favor.”

6 Responses to “That Was Sarcasm, Right?”

  1. Lazlo
    August 12th, 2005 | 7:40 pm

    If Google were going to libraries and making physical photocopies of every book in the place rather than digital scans, I think the arguments against Google Print would be a little more obvious. Even if they immediately took the photocopies and buried them in an abandoned salt mine, those copies would still be unauthorized by the copyright holder. I’m not aware of any interpretation of “fair use” that would allow copying on this scale even if they owned legal copies of the originals, which in this case they clearly don’t. Add the fact that they’ll be creating works (indexes and excerpts) derived directly from these copies and offering these works to others for commercial gain and I don’t see how anyone can seriously argue against the idea that the entire enterprise violates well-established copyright law on a grand scale.

    Whether this *should* be illegal is certainly worth discussing. But I don’t see much wiggle room around whether or not it *is* illegal. If you need the copyright holders’ permission to sample a single drum loop, you sure as hell need it to “sample” an entire library!

  2. Matt Norwood
    August 12th, 2005 | 9:43 pm

    I was also puzzled after reading Siva’s post. The case law doesn’t stress the non-commercial fair use factor nearly as much as his post implies; I don’t understand why he thinks there’s such a significant distinction between Google doing this and a library providing the same service. I also don’t understand his ethical position.

  3. Siva Vaidhyanathan
    August 13th, 2005 | 9:59 am

    Derek:

    I posted more at:

    http://www.nyu.edu/classes/siva/archives/001849.html

    Thanks!

    Siva

  4. Matt B
    August 14th, 2005 | 9:57 am

    Hey, thanks for the clear insight Siva. There is too much fanboyism of google these days clouding peoples perceptions. I hope your restraint applies to other EFF viewpoints, I think they often overstep the bounds of what needs to be protected. Keep the copyfight strong!

  5. Todd Morman
    August 14th, 2005 | 6:31 pm

    “Sure, they’re copying the entire book, but they’re only providing small selections.”

    Derek, why does Google need to copy the entire work if they’re only intending to “display a few pages from those books”? I think you need to at least address that one.

  6. Crosbie Fitch
    August 17th, 2005 | 12:22 pm

    They don’t even need to make a single copy, they can simply digest the book and build a concordance out of it.