stop regulating incidental copies
Posted Oct 11, 2005 16:39 UTC (Tue) by pdundas
Parent article: The Authors' Guild and Google Print
A major problem with copyright law is that it seems to regulate anything that could be called a copy by any stretch of the imagination. You copy the bytes into a buffer for display on a screen? That's a copy. They are in a cache? That's a copy.
Scarily, listening to a CD, which requires the use of a digital/analogue converter, which clearly moves bits around, makes a copy. Even listening to music causes the music to be neurochemically represented in your brain - future legal research may discover that's a copy as well!
To get round this, a legal fiction is invoked, whereby it is argued there "clearly must be" an implicit licence to make these copies, where that's the only way to use the item in question. But that's only a fix to a fundamentally broken definition of copying. And it makes it fatally easy allege (by lack of such an "implicit license") that unforseen but perfectly "fair" uses of the data (like indexing by a computer, here) constitute copying, and thus fall under copyright law.
Either the law should regulate only "distribution" -- carefully defined so that shuffling bits from one memory address to another (or even one node of a cluster to another) is NOT distribution. Maybe distribution needs to involve two or more distinct legal or actual persons.
...Or it should somehow exclude "incidental copies" intrinsic to another function, like browsing the web, or viewing a DVD, or indexing, or whatever. Only the intentional action should be regulated.
After all, the quoted (surmised?) position of some supporters of the lawsuit is absurd, and depends on an artifact of a broken legal definition:
> We might wish [indexing] could happen, some on that side say,
> but copyright law is what it is, so it can't.
We seem to be fixing the wrong problem.
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