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Google Print Commentary Round-Up

C.E. Petit has had a continuous stream of Google Print posts,
and argues that, at least on some claims, the copyright holders are
clearly in
the right.  He generally sticks to arguments
based on the law and previous precedents, rather than interpreting the
case as part of copyright’s meta-narrative.  Some posts are fairly
technical, and I’m not convinced by all his arguments, but I highly
recommend his analysis of the infringement claims as well as his take on how Arriba Soft
applies.  (FWIW: I think he’s examining the copying of whole books as
too separate from the final uses, and it does not necessarily matter
where Google got the lawful copies from so long as they’re lawful
copies.  Reasonable people can disagree, though.)

Google Print continues to reveal potential points of common ground
in the copyfight.  These are strange days, indeed – up is now
down, cats have begun living with dogs, and I find myself yet again
agreeing with James DeLong. He writes:

“So whatever one thinks of the program [Google Print] … one should be clear on
one point. To insist that Google get permission means that the
post-1923 literature cannot be included. And, given the de facto orphan
status of so many works, most of it could never be included. It would
just sit there moldering.”

DeLong then identifies two reasons to worry about the orphan works problem.  You can find a truckload more here. 

He even goes as far as to suggest that “Perhaps making a digital copy
anything published within the past decade
without permission is a copyright violation, whereas copying anything
earlier is fair use.” I obviously would not agree with the first part
of that, but the latter sounds like a call for copyright term length
shortening, registration requirements, and/or serious orphan works
reform.  Sounds almost like Lessig.

Meanwhile, Patrick Ross tries to ….
well, I’m not really sure what Patrick’s trying to say.  He
writes, “I find myself liking their program but not their approach to
copyright.”  But what he seems to want to say is that,
under copyright, any commercial use of someone’s work should be
infringement, and thus I can’t see how he can simultaneously like the
program itself.

I don’t understand how Google could be “shift[ing] … copyright to an
opt-out system” as Patrick alleges.  The opt-out won’t be a factor
in the case as a matter of
black letter law; they could remove that, and the relevant fair use
factors wouldn’t look any different, because is only about the books
copied without permission. Opt-out only matters in the case from a PR,
we’re-an-honest-good-defendant perspective. What’s more, copyright has
required people to ask permission for every use – that is, to get an
“opt-in” from a copyright holder in all cases.  The fact that the
Open Content Alliance doesn’t want to take a chance by mimicking the
Google Library Project doesn’t mean Google’s any more or less right
about its fair use case.

Next, Patrick compares Google Print to P2P file-sharing, even though I
think (on a charitable reading) it’s clear he would concede that those
two copyright cases are different in a million ways.  If there’s
one thought strand
I’d like purged from the Google Print discussion, it’s that comparison.
Google is not Napsterizing books; they’re showing small snippets and
need to copy the whole books as only an intermediate step to showing
snippets to individuals.  But, apparently, because Google is a
“for-profit entity,” Patrick indicates that the company should get the
publishers’ permission first.

Finally, Mike Madison and Tim Lee
take on the the publishers’ discussion of robots.txt in their
complaint.  It’s noteworthy that Google could ignore robots.txt –
it’s not a “technological measure” in the sense that it has any power
to prevent Google’s spiders.  However, putting sites behind a
registration wall does prevent spidering. Of course, just like
robots.txt, you have to actively choose to implement such a system.

Madison considers this case “not only bet-the-company litigation,
it’s bet-the-Internet litigation.”  Lee wonders what would have
happened if arguments similar to the publishers’ were brought against
Alta Vista back in 1993.  If web site publishers had won, the Web
would likely have been radically different.  Would we be better
off with opt-in search engines?