October 24, 2005
Google Print and “Copyright Meltdown”
In my last post on Google Print, I disagreed with Patrick Ross’
comparing P2P and Google Print. I wrote that I wished such
comparisons would be purged from the Google Print debate, and linked to
an earlier post by Siva. In response, Siva dropped me the following
helpful note:
historical only. P2P never gets to the metaphysical crux of copyright.
So it never really threatened to undermine the first principles of
copyright. Infringement remained infringement. Works were works. The
only questions in p2p legal battles involved third-party liability and
the overregulation of tech. These are serious issues (why we both
wrote so much about them). But they are not about the very nature of
infringement.
“Google Print/Library does lead us to
ask that question, not just because of the ‘snippet/entire work’
distinction. It’s because of the power of the players and the magnitude
of the project. This is heavy stuff.
“Basically, I am making the point that
all that hype about p2p being a ‘copyright meltdown’ was bluster when
compared to the gathering storm over this thing.”
Siva makes a fair point – his comparison to P2P is not about
Napsterization or Patrick’s point, and my linking to him didn’t clearly indicate
that. Sloppy drafting on my part.
Regardless, I was trying to group his point about P2P with Patrick’s
because, though they’re certainly distinct, I think they’re ultimately both
misguided.
These days, any time a comparison is made to P2P of almost any kind,
many people have knee jerk reactions and resort to firmly entrenched
battle stances. Those interested in having
serious discussions about the future of copyright must work very hard
to keep that tarpit of a debate about P2P from infecting all other
issues – debates not only about Google Print, but also about podcasting
and me2me technologies, for instance. I for one don’t
want to relive the debate about P2P over and over again – it’s like
Groundhog Day only without Andie Macdowell.
Siva gets this. In fact, he worries that
Google Print will cause a “copyright meltdown” by encouraging copyright
holders to run screaming to Congress, which will inevitably provoke bad
legislation. His fear is that this copyright battle is happening
too soon for people to resolve potential conflicts well.
But if that’s the worry, then the comparisons to P2P even in Siva’s
form seem counterproducive. It won’t lead to reasoned debate –
whether intended or not, it’ll lead to more people thinking
of this in terms of Napsterization, or, at least, damage to the
copyright system on a potentially massive scale. If you’re
worried about copyright holders
freaking out about this project, we shouldn’t be the ones encouraging
them to
set their hair on fire and go running to Congress.
That’s a rhetorical point. I also disagree substantively with Siva
that this will cause a “copyright meltdown.” If Google wins, how
is copyright necessarily going to stop functioning? Or, rather, how is
it going to start functioning in a massively different and bad
way? If Google loses, why does that necessarily mean a massive
shift in copyright? I know Mike Madison has called it “bet
the Internet” litigation, but there are a lot of ways for Google to
lose narrowly – I think C.E. Petit points the way to a few.
Saying that Google Print deals more with the “metaphysical crux of
copyright” than P2P seems potentially overstated. The Napster
case did indeed deal with direct infringement. Moreover, P2P
cases cut right to the transformation of the role of intermediaries – more narrowly, publishers – in the copyright system.
Yes, it’s a fair use case with very important players involved. Yes, it
could make incredibly important law. But the “bluster” about P2P
was about the severe danger to the future of copyright and
innovation. Siva’s saying that the danger is more severe. I still
don’t quite see it.
Again, Siva’s real fear appears not to be the meltdown caused by Google
Print the case, but what he speculates will come after. When I
look at the Google Print case, I say “game on”
– I see a chance for a legitimate defendant to take a real shot at
making some good law. There’s broad and even unexpected support
for what Google’s doing. A strategy of just patiently waiting on
the
sidelines, to try to hold Congress off, seems potentially very
damaging. I don’t know how it’s productive to copyfight that way
– should
Grokster not have been fought, because if we had clearly won, the
INDUCE
Act would have passed?
I respect Siva in general and for his willingness in this context to disagree with
others who typically share his views. But I think pushing this
point of copyright meltdown is both rhetorically and substantively
inappropriate. I look forward to hearing more from Siva in his
forthcoming articles on both these subjects.
Filed by Derek Slater at 4:04 pm under General news
1 Comment
Google has somehow managed to avoid the obvious. The scanning/indexing projct creates a “derivative” work. ONLY the copyright holder has the right to CREATE a derivative work. Google has somehow asserted that transforming a work into another medium, NOT altering any of the text, preserving the transformed copy in a lasting manner, and doing so for a commercial purpose is fair use. What about it is fair?
Now if Google were to give up ALL commercial rights to the project, give it and the necessary funding to a consortia of university libraries (such as the ones they are “working with”) and then find a way to restrict the use of the index to educational ones (users must log in through a library, text is displayed for only limited times and is deliberately fuzzy except say for a floating box which allows you to read paragraphs, and the ability to print and read multiple pages is severely restricted, well that might be fair use …. but that is not the Google project.