copy this blog

The Author’s Guild v. Google case is understandably being discussed by many people interested in copyright. I find all these opinions quite interesting. I know that Georgia Harper, UT System’s lawyer, believes that Google’s use is fair, as do most of the Copyfight crowd. I know Siva Vaidhyanathan isn’t so sure, and from what I gather he doesn’t think Google should be taking the action it’s taking because of the possible detrimental consequences to the public. C. Petite from Scrivener’s Error has been critical of the procedural aspects of the case, but also critical of many people’s reliance and interpretation of the famous Kelly v. Arribasoft decision in a recent post.

The third factor of a fair use analysis examines the amount and substantiality of a work used. In Kelly, the court figured that this factor counted neither for nor against the thumbnailing use. Scrivener’s Error, if I’m following the argument correctly (which is by no means guaranteed) believes that copying the complete work in this case would lead to the use not being fair, based partly on this factor. He asks the following question (paraphrasing from the evaluation in Kelly stating that copying of the whole work was necessary),

Is it necessary to copy the entirety of a textual work to “allow users to recognize the [work] and decide whether to pursue more information about the [work]”?

I think it’s a good question. Let me back up a bit, for my own sake. ^_^

Google is performing at least two activities that would ordinarily be the right of the copyright holder- copying the books and displaying excerpts of the books online. The means of displaying exerpts may be fair use (and I think it is, although reasonable people disagree). Is the entire copying of the books fair? I’d like to think so, but I’m not entirely sure. People I’ve talked to believe that the two actions- the copying of the entire work and the displaying of the work – are inseperable when analyzing fair use, which takes the purpose of the use into account. I can see that, particularly after reading Kelly, which distinguished the two but recognized the overall purpose in its fair use analysis. The author of Scrivener’s Error, I think, believes that a fair use analysis based on the above quote, if developed fully, would weigh against the copying of the entire work.

As Scrivener’s Error notes, what Google is doing and what Arriba did isn’t exactly the same. He takes that fact and asks some questions that I find fascinating in his first footnote, which he’ll get to later. I hope he does, because I asked similar questions in class but we didn’t get to really address them. ^_^; However, I also think that these differences make the rephrasing of that question above slightly off. The original statement in Kelly reads that “it was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site.” This highlights one of the differences- Arriba was looking at images, and Google is looking at text. Why is that important in this context? Because I don’t think that “recognizing” an image in a graphical index in order for a user to evaluate their potential interest in the image is the same as “recognizing” text in an index or keyword search function.

The post on Scrivener’s Error mentions that the quote above has been shortened into the idea of “indexing,” which professional index-preparers would deny (as well as the Second Circuit courts, but I’m not going to address that). I’m not so sure about that, but I don’t know if in terms of fair use arguments equating the above quote with indexing matters all that much. The indexers I’ve met- mainly acadmemic, admittedly- do tend to recognize search engines as near kin to what they do, although there are differences. In my experience, some traditional indexers tend to view search engines as inferior. Note that in the Indexing and Abstracting course once taught here, one of the goals of the course was to “appreciate the limitations of indexing and searching software.” Of course, we also have classes that teach data mining and search engine related technologies. I have no problem referring to the actions of a search engine as indexing. However, I don’t think that the fair use analyses I’ve looked at solely rely on the Appeals Court’s evaluation of the third factor when they refer to of indexing. In their analsysis of the first factor, the purpose of the use, the Court notes that the purpose of Arriba’s action was to “index and improve access to images on the [I]nternet and their related websites” and note the transformative nature of Arriba’s actions. I think Google has an even stronger first factor than Arriba- digitization of text offers a great deal more in the ability to index and search text then Arriba’s copying of already digital images. That’s a whole paper on itself at some time, though, so I’ll leave that alone for now. Anyway, if the purpose is “indexing,” given the differences between text and graphics I think the question should be a bit different.

I would rephrase, looking at the third factor. Is the digital copying of the complete work necessary for users to find information about the work and seek additional information about the work?

Also, though, in the overall fair use analysis of the case, two of the factors were for Arriba, one was neutral, and one was slightly in favor of Kelly. The neutral’s swinging towards the Kelly would have changed the overall analysis, but I don’t know by how much overall.

Well, I’m going to have the opportunity to learn more about copyright through the American Library Association and their new copyright scholar program. I’ll get to visit DC for a couple of days in November and then participate in some online activities- I’m looking forward to it.

My application to the doctoral program is complete- I hope that all my recommendations got in on time. ^^;

The Author’s Guild is suing Google Print, according to their press release.

“This is a plain and brazen violation of copyright law,” said Authors Guild president Nick Taylor. “It’s not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.”

Their argument is a bit disengenuous. I have two big problems with the quote. One, it makes it seem like the authors are the copyright holders, which in many cases is just not true. You can’t automatically equate authors with copyright holders. Two, and more importantly, it is not up to the authors or copyright holders to decide whether and how their works are copied in all cases. That’s why we have copyright exemptions. That’s why we say some uses are fair or protected no matter what the copyright holder says. Google doesn’t have to listen to the publishers, although there are all sorts of reasons (like avoiding a lawsuit) to do so. They are also providing an opt out, which might help their fair use argument in some ways. At any rate, although I do have problems with Google’s “being a library,” I do ultimately think that they have a decent fair use case.

Historically, the primary purpose of US copyright law was not solely to protect the authors or copyright holders. Copyright law is the means to give authors and creators incentive to create- but the point is to benefit the public. Protecting the authors is important because the protection provides that incentive to create. I think that copyright law, with all of its recent changes, hasn’t benefitted authors/creators as much as it should have- it tends to benefit publishers and distributors over authors. And at some point the protection given to the copyright holders becomes so strong that the detriment to the public outweighs any incentive it may provide- like the copyright term extensions. Authors do need protection. We have to keep that in mind. But we also must think of the public interest in these types of cases. So, here are the questions: How would the Google Print project help or hurt the public? How would the Google Print project help or hurt copyright holders? How would the Google Print project help or hurt authors?

OK- Madisonian.net has some responses to my comments, and responses that don’t quite address what I was talking about (probably due to my unclear writing). The message is addressing the rhetorical argument of treating Google as a library, and asks the question, “What is a library?” Now, I do have an MLIS. I have studied libraries, I value the institution and I value the professional mission- and I don’t have an incredibly good answer to that question. More in a bit.

First, though, in respect to the copyright argument- I wasn’t really talking about the court of public opinion, or rhetorical arguments. I wasn’t using the term library colloquially. I was using the term library to mean a library that fulfills the requirements of Section 108 for the purposes of the library exemptions. I don’t think Google can fulfill those requirements at this point, and I don’t think they should try unless they change the way their contract works. I wasn’t making a value judgment about the usefulness or uselessness of calling Google a library, then. I will in a bit. That’s what I meant by a “real” fair use argument- not in terms of the authenticity of the argument, but in terms of a “real” fair use argument instead of a library exemption argument.

To clarify, I think it would be more useful to look at a fair use argument than a library exemption argument.

Now, the “What is a library?” question is one that is often discussed, obviously, in this field, as is the related question “What is a librarian?” In general, I think, the broader sense of information use and uses can be used to term something a “library,” but there isn’t really a consensus. Colloquially, of course, we all consider all kinds of things libraries, including personal collections and so on. In the more traditional sense, there are many types of libraries- special, public, academic, etc. These include private libraries and for-profit libraries. Now, there are unifying aspects of “librarianship” as it pertains to librarians, although they’re not quite absolute across the different areas of the profession. They’re probably best exemplified by the American Library Association and its values. There are also information professionals who have little to do with libraries as such. For example, we offer a number of courses involving information technology, human computer interaction, accessibility and usability, and so on. Some professionals consider what they do librarianship, and some don’t. Take a look at a recent librarian.net post about what Jessamyn does all day, which in a brief paragraph mentions that she doesn’t consider herself a librarian, a divide between professionals and paraprofessionals, and popular media portrayal of librarians. My perspective is probably best shown in my letter to the Texas Library Connection list. I have an MLIS, but I don’t consider myself a librarian. (Sorry, Siva. ^_-) I think that what a professional librarian does is different from what I do in my day to day activities.

No, I don’t think there is a simple “essence of a library” definition, particularly in the sense of a physical place. Some disagree. I don’t believe a library is defined by a librarian selecting materials, but I do believe there are practices that make a library a library. There’s lots of literature about the subject- I’ll see what I can dig up when I get a chance- but I don’t see an overwhelming consensus for a set definition. The commonalities, I think, the actual “essense” is best shown in shared values. Our values do tend to focus on the users, the people that use the services we work with.

In a rhetorical argument, or in the court of public opinion, yes, I think it would be useful to Google to be considered a “library,” merely because of the weight of the word and generally positive associations with the word. Even so, though, not all libraries can take advantage of copyright exemptions. For-profit libraries can’t, as an easy example. That’ s one reason I don’t think it matters- from a library exemption argument- whether or not Google is considered a library. Given Google’s recent behavior about this particular case, if the letter to Library Law is accurate, I don’t think it should be termed a library. Google’s service may be akin to a library’s service, but I don’t think calling Google a library in this case would really be beneficial or fair to libraries. Again, if the contract Google had with the universities was different, there’s a very good chance I’d back them. Generally, I really admire Google- just not in this instance.

An interesting argument is occurring in the copyfight world, notably over Google Print. Copyfight has decent coverage. Siva Vaidhyanathan has a different take, apparently, then most of the posters on Copyfight. The different viewpoints are pretty interesting. Recently, there’s been some talk about treating Google Print like a library. I don’t think that will work. I commented on Copyfight:

——–
I honestly think the discussion of Google-as-library is more of a distraction from a real fair use argument. Copyright law does not have a definition of a library (or archive) per se, but does have qualifications that a library or archive must fulfill to take advantage of library or archive exemptions. Section 108, a 1 and 2, notably:

—
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field;
—

Under the current contract (which you can find a discussion of on the Library Law blog, when the FOIA’d it), I don’t think Google can meet those requirements (particularly the first). That’s why Google is not a library. If they changed the contract, maybe… but more importantly, I don’t know if Google would want to be treated as a library.

The restrictions for digital reproduction are pretty substantial, even for libraries. It’s actually a losing proposition for Google to be treated as a library, because the digital reproductions of a library are limited to the premises of the library. That’s the physical premises of the library.
——–

I’m also a bit wary of Google Print after reading a letter about the Google Print contract on the Library Law blog.

Now, assuming that the contract with Google Print wasn’t quite as odd as it appears to be- if Google actually was acting like a library- it would still need to rely on a fair use argument to do what it plans to do.

This is what I see:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Currently, this would weight against Google IMHO… unless they change the contract or actually act as agents of the library, which their current contract reportedly does not allow. This is the one that is in Google’s power to fix, and they probably should if they want to make a serious fair use argument.

(2) the nature of the copyrighted work;

Sometimes for Google, sometimes against Google.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Against Google, I believe.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is the one that will be heavily debated, and actually does need some research performed to get a satisfactory answer. There will be arguments made for both side. I fear that strong IP proponents will win this argument, without actually considering the merits. I don’t know the answer to this, but I hate seeing something decided in that manner… this is where we need to work.

I’m sure there are better arguments to include here.

[Update] Mary Minow points out (on Copyfight) that there’s nothing to lose by being a section 108 library, you still get fair use either way. I completely agree with that correction.

Several stories from the last few days have been fairly grim.

Reading Harry Potter before release date illegal illustrates a view that some content industries love- that you shouldn’t even be able to read something without the author’s permission. This story is from Canada, and I’m not familiar enough with Canadian law to determine whether that viewpoint is accurate or not, but I certainly don’t think it’s accurate in the US. Michael Geist has a few things to say about the situation (July 12-13) and its attacks on the freedom to read, freedom of expression, and personal property. In the US, there’s also the doctrine of first sale…

In Australia, a man has been found guilty of hyperlinking. Combine that with proposed amendments to Canadian law that would make search engine activity illegal and a copyright infringement lawsuit against the Internet Archive’s Wayback Machine, and you’ve got a good picture of how law and policy can affect the Internet as we know it.

I’m using Google Alerts to get articles about copyright and other subjects, and the things I see disturb me.
The boy scouts of Hong Kong are getting an IP badge. I wonder what they’re taught about IP? The industries pushed the concept. I’d like to see what they’re learning.
It disturbs me that there’s so much FUD associated with copyright. Search for “Sharing isn’t Caring,” a phrase I got from Google Alerts, on a search engine. You’ll get an eyeful, and an eyeful that is in many respects, wrong. We’ve got Christianity Today lamenting the fact that only 20 percent of their readers (from a poll) believe that all ripping/burning is illegal while 34% believe that personal copying is okay. That’s sad. Audio Home Recording Act, anyone? The Rio case? etc. etc.?

Saw the RIAA/Internet2 story on BoingBoing, Freedom to Think and a few other places. It’s not a shocker that the RIAA is suing more colleges for trading over Internet2, and as Felten notes, it’s not suprising that the RIAA could access the Internet2.

I’m willing to bet, though, that many students have no idea that they’re using the Internet2 to fileshare. Use of the Internet2 is transparent to them, at least here at UT. Judging at the very least from people to work from me and past students, it’s not something that many of them think about, or have even been told about. The Internet2 is just part of the Internet, “maybe the faster” part that we get here at the University, a couple have said. Most of our students are surprised to find out that some of their data is being transferred over the Internet2 when they connect to other universities- we have them use traceroute and watch for the Internet2 Abilene network in one of their assignments.

There’s a bit of a strange story in the Daily Texan today about the RIAA/Internet2 lawsuits. It notes that the RIAA would like to include subscription file sharing services in student tuition. I wonder how well that idea would go over?

Like the RIAA/MPAA educational materials and many college and university copyright policies, the story doesn’t really provide enough information… “Sherman said the lawsuits were intended to educate the public, and students in particular, that file sharing without permission is legally risky. Copyright infringement carries a minimum penalty of $750 per item, Sherman said, but the RIAA routinely settles the cases at far less, in the $3,500-$4,500 range. ” It’s all true, but the RIAA education always pushes the legal risk without truly educating about legal uses of P2P software. I don’t think they can call what they’re doing education. Of course, the article is very clear that the RIAA is all about the fear. The ending is particularly unusual, with quotes from Eric Garland of BigChampagne (who tracks P2P usage for the industry, according to the article):

Suits can only be brought against people who not only share their music but also allow downloaders to browse their files freely – something most peer programs now configure against automatically.

“The industry is picking off easy targets,” Garland said.

Everyone at the University can download the entire history of music without any fear of litigation, he said.

“You can be immune right there in your dorm room.”

I find that odd for several reasons, not the least of which that it isn’t entirely correct. That someone who works for the industry would make a statement like that is surprising, although I wouldn’t be surprised if it was taken out of context given some of our previous experience with the paper. But the statement could also lead to a false sense of security- even if the student’s directory isn’t browsable, people can certainly use packet sniffing, bandwidth and network monitoring to find out if someone was sharing files with many of the popular P2P file systems. I knew they were targetting people who shared a lot of music, but I thought they collected information using more sophisticated means.

Seth Finkelstein notes to librarians that they can’t hack the DMCA. True, but it’s a pity. He was responding to a post at the Shifted Librarian’s blog. The comments at the shifted librarian are also pretty interesting, including this:

Here’s the rule about electronic and electronically-distributed information: licensing reigns supreme and copyright goes by the wayside. It is a trend that, unfortunately, is not discussed enough amongst librarians and other information professionals.

I don’t find that observation entirely true- the lib license list discusses it fairly often, and it’s a subject I’ve seen with increasing frequency over the last few years in places (like the copyright courses at the iSchool, for example). But I absolutely agree that it needs more discussion, comment, and publicizing.

Here’s a strange and somewhat disturbing case:
http://blogcritics.org/archives/2005/04/05/140248.php

It appears that New York common law expands copyright for sound recordings that, under federal law, are no longer protected. It’s disturbing for a number of reasons. For one, now people must think about a host of other issues whenever they use a work, even if it is no longer protected by federal copyright law. That was difficult enough before this decision, and that difficulty has now grown. Now we’ll have to wait until a case of digital and/or online infringement is brought to suit.

Will any court or law recognize the value of the public domain?