The Authors' Guild and Google Print [LWN.net]

September 28, 2005

By Pamela Jones, Editor of Groklaw

Lawyers, like the rest of us, are reacting with great interest and some passion to the Author's Guild's copyright infringement lawsuit against Google over its new Google Print Library Project, by which Google plans to scan books from the libraries of Harvard, Stanford, Oxford, the University of Michigan, and the New York Public Library and make them searchable by keyword. Google describes the project's goals like this:

The Library Project's aim is simple: make it easier to find relevant books. We hope to guide users to books specifically books they might not be able to find any other way all while carefully respecting authors' and publishers' copyrights. Our ultimate goal is to work with publishers and libraries to create a comprehensive, searchable, next-generation card catalog of all books in all languages that helps users discover new books and publishers find new readers.

The Author's Guild describes it differently. To them, it's massive copyright infringement, pure and simple. The lawyers are trying to figure out who is right and which side is more likely to prevail, to the extent anyone can predict a fair use case, but there are bigger issues raised by this litigation. Here's the complaint [PDF] and Google's public statement in response. If you'd like to follow the lawyers' discussions, here are some places where you can do so: Susan Crawford's blog, William Patry's The Patry Copyright Blog, and Eric Goldman's Technology and Marketing Law Blog, and here's Andrew Raff's excellent collection of attorney reactions on IPTAblog. You might enjoy reading Tim O'Reilly's thoughtful take on the lawsuit, looking at it from a publisher's point of view.

How Google Print Library Works

What exactly is Google doing with Google Print? First, what *isn't* it doing? It isn't making copyrighted books available cover to cover against anyone's will. There are three parts to Google Print. One, Google makes books available in their entirety only when the books are in the public domain, like Project Gutenberg has done for years. Second, when publishers or authors agree, it makes sections available, the page the keyword appears on and a few pages on either side, but that is a separate facet of the project, the Google Print Publisher Program. The one the Author's Guild is fighting over is the third part, Google's Print Library Program, and for that Google will show only a few sentences on both sides of the keyword searched for, and not necessarily complete sentences. You never see a full page, let alone an entire book. You will also find bibliographic information and where you can find related information on the web. In all cases, you will also be directed to nearby libraries and bookstores where the book is available for purchase or loan, including second-hand bookstores for out-of-print books.

Screenshots of the three different offerings can be viewed here. And Google's Common Questions about the Google Print Library Project says that Google Print is "designed to help you discover books, not read them from start to finish. It's like going to a bookstore and browsing only with a Google twist."

Google's Side

On the Google side, the clearest arguments are presented by EFF's Jason Schultz, who explains the four fair use tests; Jonathan Band's paper, "The Google Print Library Project: A Copyright Analysis" [PDF]; and Susan Crawford on her blog, all of whom essentially say that copying entire books in order to make a digital keyword-based catalog is transformative and is fair use. Google isn't copying more than is necessary, they argue, because you can't search for keywords unless you have the whole book available. And anyway, where's the harm to the market? They cite the Kelly v. Arriba Soft case [PDF], in which the defendant made thumbnails of other people's photos available online in response to search requests, with links to the original works, if anyone wanted to purchase them. Arriba's use was ruled fair use, despite the fact that not only was an entire copy of the original made, a smaller version of it, in its entirety, was made available to the public. Google is only showing a sentence or two, not the entire book, for works where the author hasn't given approval to show more. If Arriba is fair use, why isn't Google Print's Library Project also?

If you wrote an article for a magazine and quoted a sentence or two, likely no one would complain, because it's so obviously fair use, so why is it a problem for Google to do the same thing with books? And what is the difference between Google collecting the world's content made available on the Internet so as to make it searchable and collecting keywords from the world's books? Copyright holders can opt out. If Google Print violates copyright law, why doesn't Google, period?

A common theme on both sides of the argument goes like this: Google has had a fantastic idea, one that can benefit the human race, and almost everyone hopes there is a way for them to do this. It's just a question of how to do it right. Google is shouldering the expense and effort of making a library card catalogue, so to speak, of the world's knowledge and offering it free to the world. Can anyone *not* want that to happen?

Authors should want to be included so they can be found. The world does its research now predominantly online, and authors, particularly authors whose works aren't selling like hot cakes, have everything to gain from being included in Google Print.

Author's Guild's Side

On the Author's Guild side is the argument that authors have the right to decide when others may or may not copy their works. This case differs from Google indexing the web's content, because a license can be inferred when someone puts content on the web and doesn't take steps to ban Google and other search engines with a robots.txt file. There is no equivalent implied permission from the authors of these books.

Copyright law gives copyright holders the right to make copies, period, and no one else can do so without permission. Libraries don't own the copyrights to these works, so they can't give permission, it is argued. Google will violate copyright law, no matter how little it shows the world, because it will make copies and store them on its servers. The onus is on Google to contact all the authors and publishers and get permissions, one by one, they say. If that is so onerous and costly that Google Print Library can't happen, so be it. The law is the law. This side cites the MP3 decision [PDF].

We might wish it could happen, some on that side say, but copyright law is what it is, so it can't. Some even predict that this litigation will shut down search engines like Google's. A few hope that happens. Some of the complaints about Google Print seem more emotional than based on fact. One comment on Boing Boing by a publisher is particularly interesting:

Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to either author or publisher. University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security.

The second being Google will be profiting (through GoogleAds) on this content again without compensating the authors or publishers. Fair use should exclude commercial use. Even Creative Commons licenses (which I grant to my flikr account) gives you that option.

If we expect the production of good scholarship to be a viable, it has to be paid for somehow.

A little more accurate information may help calm these fears. First, fair use doesn't exclude commercial use. I can write a parody, for example, of your book, even if you don't want me to, and I can sell my parody. Second, take a look at the terms of the Google-University of Michigan agreement [PDF], which is available on the university's web site, and you will see that Google has bound the University, and any of its partners, to limitations on access and use. Further, should there ever be a dispute between an author and Google about including a work, the work can be removed by Google, and the University must then follow suit. Authors can always opt out.

What about the allegation that Google will make money from this project from ads? Google says there won't be any ads on the books scanned from a library. This is important, because the Complaint specifically alleges that Google will be profiting by ads: "4. Google has announced plans to reproduce the Works for use on its website in order to attract visitors to its web site and generate advertising revenue thereby." As for the links to bookstores, Google says that the links they will provide will not be "paid for by those sites, nor does Google or any library benefit if you buy something from one of these retailers." Clause 4.3 of the agreement says that the service will be provided "at no direct cost to end users".

While the Author's Guild makes much of Google allegedly profiting off of its members' work, a strong argument can be made that it's the other way around, since Google is providing a new way for readers to discover their members' books, even those on the deep, deep backlist, as you can see in this example.

Are There Problems with the Complaint?

Then there are some attorneys already pointing out flaws, procedural defects they believe they see in the Author's Guild complaint. It is supposedly a class action, but some see a problem with class certification. The complaint defines the class as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan. Class action lawsuits are supposed to represent the group the few who are named allegedly represent, but Lawrence Solum, who is an author, a member of the plaintiff class in the sense that he has several works in the University of Michigan's library, opposes the lawsuit and says he will be harmed if the Author's Guild prevails:

I have a very strong objective interest in Google Print succeeding -- because as a scholar, I benefit from the dissemination of my works and because reaching agreement with Google will be costly to me and Google, essentially killing the project. A substantial intraclass conflict of interest destroys "adequacy of representation," making class certification inappropriate, both under the federal rules of civil procedure and under the due process clause of the fifth amendment of the U.S. Constitution. . . . Pro-bono representation for intervenors opposing certification, anyone?"

Is it Copying That Causes Harm, or Distribution?

Think about brick and mortar libraries. Suppose I were a librarian. I want to catalogue every book in my library and do it by keyword, so readers can come to the library and look up information by keywords on index cards that I laboriously file alphabetically in file cabinets. Each keyword will show you where in that library you can find a book that uses that keyword, with the page given, and additionally tells you where, in nearby bookstores, you can buy the book.

Would my painstaking work be a copyright offense? It's laughable to even think of it. Now, suppose I take all my index cards, and I laboriously hand type them into a computer. I have a computer database now, listing every keyword. Now have I violated copyright? Again, it doesn't pass the laugh test, does it?

But what if I realize that instead of the hand method, all I have to do is scan in the whole book and then pick out keywords by algorithm. Now am I a copyright infringer? If so, why? On the technicality that I had to scan in the whole book, thus making a copy, in order to break it down into keywords for my card catalogue of my library's contents? Purists for the law will say "Yes. You are an infringer," because you made a copy.

And they are right. You did. But exactly who is harmed by this scenario? The end result is exactly the same, whether I do the work by hand or by computer, except that Google deliberately limits how much I can see, whereas in the library, the keyword would lead me to the entire book, which presumably I could borrow, take home and scan or Xerox myself, if I don't care about copyright. If the copy merely stays on Google's servers, used only for making a digital card catalogue, in what way is the author or the publisher harmed? Have they lost any sales? Google isn't displaying the works in their entirety on its website, as the Author's Guild seems to imagine. It isn't selling the books or offering them for download. It is offering a tool to search books. Where is the harm to the market? Libraries have special rights under Copyright Law. Why shouldn't this project?

The Big Picture Questions

For those of us who are not lawyers, our dominant reaction to this lawsuit is probably that if Google Print Library violates copyright law, somebody needs to change the law. This litigation raises some important questions: What is a library in the digital age? What is a book? Is Google Print going to do away with books as containers of knowledge, replaced by searchable databases? What about this litigation's effect on copyright law in the US? Is it possible, as one comment on the Conglomerate blog suggests, that if it wins, "Google may be planting the seeds of the destruction of copyright as we know it"?

Computers are, under current law, the ultimate infringers, in the sense that you can't read anything on a computer without making a copy in RAM. There is, in short, no way to avoid making a copy, if you access at all. It's the gotcha of copyright law in the digital age, and at some point, some say, we need to think about that issue and decide what to do about it. If you want the hairs on your head to stand straight up, note the lack of comprehension of the tech involved in using a computer by reading the MAI SYSTEMS CORP. v. PEAK COMPUTER, INC., 991 F.2d 511 (9th Cir. 1993) decision: "After reviewing the record, we find no specific facts . . . which indicate that the copy created in the RAM is not fixed."

Susan Crawford explains:

All computers do is copy. Copyright law has this idea of strict liability -- no matter what your intent is, if you make a copy without authorization, you're an infringer. So computers are natural-born automatic infringers. Copyright law and computers are always running into conflict -- we really need to rewrite copyright law.

Ernest Miller and Joan Feigenbaum, in their very interesting paper "Taking the Copy out of Copyright" [PDF], suggest that we drop the copy from copyright law and focus on distribution instead. After all, it's distribution that harms authors and publishers, not copies on a Google server no one can see or access but Google.

We watched Napster get hogtied, killed, cremated and scattered to the winds, and most of us were sad that the law was trying to snuff out a great new idea because the courts seemed not to grasp the tech and the real potential for businesses founded on this new technology. But the world's books? Should the law block a new way to research and find books on any topic any human has ever written about, broken down and searchable by keyword, a way to to find specific books by keyword in the finest libraries in the world, without having to travel there physically?

Larry Lessig puts it like this:

Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible. . . . Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The "authors'" claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you.

The Author's Guild has only 8,000 members. I say "only" because Groklaw has more members than that. The value to the public of Google's Print Library collection so far outweighs the value of one book to one author or even 8,000 books to 8,000 authors, that it is hard to comprehend how any law could be permitted that could allow such a result as shutting down Google on the demand of those 8,000 authors.

Copyright law is designed to protect authors, yes, but it is supposed to do so in a balance with the public good. Copyright law's purpose is to further the public good by promoting more works of authorship, so as to make knowledge available. When did that part of the law's purpose get forgotten? Protecting authors' rights is a means to the end of making knowledge more freely available, which is exactly what Google is trying to do. If the Author's Guild succeeds in blocking this project, it will have managed to turn copyright into a means for restricting the spread of ideas and reducing the public good.

Index entries for this article
GuestArticles	Jones, Pamela

Problem I see with dropping the "Copy" part of copyright

Posted Sep 29, 2005 10:17 UTC (Thu) by mauvaisours (guest, #6130) [Link] (6 responses)

Can anybody tell me if I am wrong in the following process :

- Suppose we drop the "Copy" part of copyright law.
- I borrow a CD from a friend. This is legal.
- I copy this CD. This is now legal.
- I give back the CD to this friend.

Nothing illegal has been done, but there are now 2 copies of the CD, so the whole CD business is down in the dumps.

Problem I see with dropping the "Copy" part of copyright

Posted Sep 29, 2005 10:40 UTC (Thu) by mp (subscriber, #5615) [Link]

This is actually perfectly legal in at least some countries on this side of Atlantic. And guess what? CDs are still sold and bought here.

Problem I see with dropping the "Copy" part of copyright

Posted Sep 29, 2005 11:26 UTC (Thu) by khim (subscriber, #9252) [Link] (3 responses)

Nothing illegal has been done, but there are now 2 copies of the CD, so the whole CD business is down in the dumps.

Sorry. The last step was illegal. This is distribution and that's prohibited. It does not matter if it's your friends CD: you must either delete your own copy or keep both copies, or you are distribtiong copyrighted work - and that's prohibited.

Looks perfectly reasonable to me and this is how normal people are viewing copyright anyway: noone who's not paid by madia companies think it's illegal to copy from legally bought audio-CD to your MP3 player.

Problem I see with dropping the "Copy" part of copyright

Posted Sep 29, 2005 11:56 UTC (Thu) by mauvaisours (guest, #6130) [Link] (1 responses)

OK with that. I didn't see it like that, but it makes perfect sense.

BTW, I'm probably on the same side of the atlantic as you mp, the "down in the dumps" parts was of course mostly humour.

Problem I see with dropping the "Copy" part of copyright

Posted Sep 30, 2005 22:28 UTC (Fri) by mp (subscriber, #5615) [Link]

I think I should maybe mention that I'm not so sure anymore if copying from a friend is still allowed use of copyrighted works here ('here' being Poland, to be precise) after some recent small changes to our law. How can I be if even copyright lawyers aren't. Though at least some of them seem to think it is still OK.

And record companies will probably claim that the whole CD business actually _is_ down in the dumps.

Problem I see with dropping the "Copy" part of copyright

Posted Sep 29, 2005 13:04 UTC (Thu) by bfields (subscriber, #19510) [Link]

Looks perfectly reasonable to me and this is how normal people are viewing copyright anyway: noone who's not paid by madia companies think it's illegal to copy from legally bought audio-CD to your MP3 player.

Note that what normal people think is perfectly reasonable is not unfortunately the same as what copyright law currently says. In this case I think you may be right (thanks to the home recording act). Replace audio CD by a piece of software, and you may not be. (See Mai Systems Corp. v. Peak Computer, Inc.)

But I agree, it would be great to draw the line at distribution instead of copying. That seems like a very sensible balance.

Problem I see with dropping the "Copy" part of copyright

Posted Oct 1, 2005 15:31 UTC (Sat) by addw (guest, #1771) [Link]

What is illegal is that both you and your friend have a copy each; if you or him had both copies that would be OK.

However it is perfectly legal for me to buy a book/CD/..., read/listen to it and then give/sell your the item. You then read/listen to it. What I find interesting is that the fact that both of us have (albeit imperfect) copies of it in our heads (can you remember the story or sing a song ?), but that is OK.

Is the problem that computers make perfect copies ? What if my computer made 'imperfect' copies, only played back parts of it ? Would that make it OK ?

Oh, isn't that what google is doing ... only displaying parts of the copyrighted work ?

Please help me, I don't understand.

The Authors' Guild and Google Print

Posted Sep 29, 2005 15:13 UTC (Thu) by mightyduck (guest, #23760) [Link] (5 responses)

Google could do the same as some german vendors for phonebook CD's did.
They hired a couple hundred (or thousand) chinese low-wage laborers and
let them read and type in the content of german phone books. What would
that be then? It's certainly not "copying" in the sense of copyright law
because a human is reading the book and typing it at the same time into a
computer, right? Copyright law doesn't forbid reading a book and it
certainly doesn't regulate what I'm allowed to do at the same time I read
a book. It's still perfectly legal if I read a book while sitting in
front of a computer and typing stuff on the keyboard. Of course, this
method would probably be more expensive than scanning but you only have
to do it for the books which are not public domain yet.

So, to me, the whole concept of "copying" in the copyright law stinks and
has to be rethought. I can still make a copy of a book in my brain but I
can't in my computer. But IANAL.

The Authors' Guild and Google Print

Posted Sep 29, 2005 16:02 UTC (Thu) by jstAusr (guest, #27224) [Link] (4 responses)

I don't believe a phonebook is copyrightable because it is a list of names and facts.

The Authors' Guild and Google Print

Posted Sep 29, 2005 18:52 UTC (Thu) by kreutzm (guest, #4700) [Link] (3 responses)

It is copyrightable, the same way as a database is copyrightable. Of course, the single entry is just a "fact", but the *assembled* version follows the copyright (similarly for the database).

Copying phone books

Posted Sep 29, 2005 20:15 UTC (Thu) by giraffedata (guest, #1954) [Link] (2 responses)

Actually, there is an old case in US copyright law that holds unequivocally that a phone book isn't covered by copyright. For it to be covered, either the individual entries would have to be creative or they would have to be arranged in some creative order. The court found that alphabetical order was not sufficiently creative.

This was reaffirmed in the seminal (for other reasons) Phonedisc USA case, in which a person bought a CD of phone directories and published them on the web.

For a database to be covered by copyright, it would have to meet the same tests. Note that the number of databases covered by copyright is probably far less than the number whose authors claim they are covered by copyright, so we really don't know how many are.

But the OP talked about German, not US copyright law. It's probably different.

In any practical copyright law, typing from sight is copying. There would be little point to copyright if it weren't. So it's hard to see just what the legal value of having laborers type in German phonebooks (vs what alternative?) was.

Copying phone books

Posted Oct 3, 2005 22:56 UTC (Mon) by man_ls (guest, #15091) [Link] (1 responses)

In Europe compilations of facts are copyrightable, at least in the EU. In fact they are copyrighted, so you cannot redistribute databases like phone books, even if they are not creative at all. On the other hand, personal data are protected by European Directives, so phone books are doubly delicate. IANAL.

Probably the "Chinese copy writers" were just exploiting some German loophole in the law, or even more probably were mythical. As you say, it makes no sense; otherwise they could type in the latest bestseller and distribute it. Or sing Chinese a capella versions of the latest successful songs, as "you can certainly listen to music and the law cannot regulate what you do while listening".

Copying phone books

Posted Oct 6, 2005 7:25 UTC (Thu) by Wol (subscriber, #4433) [Link]

ACtually, they are NOT "copyright". They are "databaseright" or whatever it's called. It's a similar, but distinct, concept of IP right.

The law places a value on the work carried out to create the compilation. So in practice, it works out just like copyright, but isn't. Just as two people could, theoretically, write the same book without knowing about the other, and copyright says "that's fine", so you have the same with databases - if my research produces the same results as yours, then there's no infringement, but if my research consists primarily of going through your database, then there is ...

Cheers,
Wol

The Authors' Guild and Google Print

Posted Sep 29, 2005 15:42 UTC (Thu) by vmole (guest, #111) [Link] (3 responses)

Lots of good arguments in favor of Google Print, unfortunately marred by one extremely bad one:

So it's okay to hurt a bunch of people, so long as more people benefit? If that's a legitimate argument, then Google should be publishing the whole book, because everybody benefits from *that*, too, except for those measly 8000 authors.

The Authors' Guild and Google Print

Posted Sep 29, 2005 16:07 UTC (Thu) by martinfick (subscriber, #4455) [Link]

So it's okay to hurt a bunch of people, so long as more people benefit?

No, it's not OK, thus the fallacy behind democracy. Among others, Rothbard makes this point very well here:http://www.mises.org/rothbard/ethics/twentytwo.asp

On the other hand, who is hurting whom? Considering that copyright itself is an unnatural (watch how a child reacts when your first explain this strange concept to them) imposition on the masses for their supposed benefit, copyright holders or authors can easily be seen as the ones hurting the freedoms of the rest of society for their benefit. I will assume you have read RMSs writings on this, if not simply peruse the FSF site.

The Authors' Guild and Google Print

Posted Sep 29, 2005 16:10 UTC (Thu) by dlapine (guest, #7358) [Link]

That arguement is tenuous, but so is yours- how are the minority hurt without unauthorized distribution of their works?

As the ariticle states, copyright was authorized in the constitution as a way of "promoting the public good". Unless you can point to specific harm suffered by the authors when their works are not distributed, I think that the public good trumps the demands of those authors in this case.

The Authors' Guild and Google Print

Posted Sep 29, 2005 20:39 UTC (Thu) by giraffedata (guest, #1954) [Link]

If that's a legitimate argument, then Google should be publishing the whole book, because everybody benefits from *that*, too, except for those measly 8000 authors.

Not to detract from the argument about good-of-the-majority reasoning, but when considering what copyright is for, we should always remember that the authors are not the primary beneficiaries of it, and therefore not the main ones who would be hurt in this hypothetical. While some people believe there is a moral right to profit from one's own creativity, that's not why copyright was invented and not why many people continue to support it. The ultimate beneficiaries of copyright law are we readers. Copyright is one way we get authors to write for us.

The system also has the effect of appointing the authors to defend the system and keep material flowing to readers by filing lawsuits like this. The authors, while technically guarding their own selfish interests, tend to consequently further readers' interests as well.

Extranational issues

Posted Oct 1, 2005 8:52 UTC (Sat) by job (guest, #670) [Link] (3 responses)

How much of the LWN reader base is outside the US? I ask because I am honestly tired of articles discussing US law cases, without any explanation how the your law system works, or what legislation is involved in this particular case. All this is impossible to understand from the outside.

Not only is all this uninteresting since we on the other side of the ocean lacks the background knowledge to understand the politics involved (which on the other hand does not seem to set us apart from most other readers), but it is also a bit tedious to constantly be reminded about the sort of ethnocentrism where "the law" is a reference to a specific one.

This problem is also well reflected in the comments, where people discuss their respective countries' implementation of the Berne convention and no one understands the other.

Extranational issues

Posted Oct 1, 2005 13:54 UTC (Sat) by corbet (editor, #1) [Link] (1 responses)

LWN's readership is roughly 40% US, 40% Europe, 20% everywhere else (with Australia and India fairly strongly represented). We cover US law heavily for two reasons: (1) we're in the middle of it, and it's the most visible to us, and (2) like it or not, what happens here often gets exported elsewhere.

That said, we do try to stay on top of what's happening elsewhere, and cover it when we can. The European patent situation may be the most obvious case, but there are others. And (hint) if we had writers willing to do articles on interesting developments in their legal systems, we'd have more coverage.

As for the language, it's a constant challenge to write with a true global point of view. Localisms creep in all the time, from references to "the law," or "foreign countries," or "happening in the Spring." We work at it, honest.

Extranational issues

Posted Oct 6, 2005 12:50 UTC (Thu) by zotz (guest, #26117) [Link]

"what happens here often gets exported elsewhere."

If that were the only direction of flow, things would be bad, but not as bad as they are.

As it stands, countries are playing a game of leap frog under the guise of "harmonization."

all the best,

drew
--
http://www.ourmedia.org/user/17145

global issues

Posted Oct 7, 2005 1:56 UTC (Fri) by xoddam (subscriber, #2322) [Link]

LWN's reporting is among the least 'national' of any publication I've
ever read. The coverage here of happenings (including legal issues)
across Europe, India, China, South American countries, Taiwan, Africa
(well at least South Africa), Japan, Australia and the US is very
impressive indeed.

Unfortunately we do get limited reportage from places where a limited
proportion of people speak English. It's not exactly coincidental that
English-speaking countries (and those where large numbers speak good
English as a second tongue) are the places where free software and
related technologies are most widely developed (the reasons concern
empire, wealth, education, communication and commercial opportunities).

The fact that US legal issues are reported here reflects exactly the
disproportionate influence of America in trade. If you wish to trade
with the world, it pays to trade with America. If you wish to trade with
America, it is useful (often compulsory) to make yourself amenable to
American business, which is what America itself has done, surprisingly
enough. Moreover bilateral 'free trade' agreements between the USA and
other countries explicitly *oblige* countries to align their legal
framework, especially copyright and patent laws, with that of the US.

And although LWN does not exist to inform the world about the US legal
system, articles here and at Groklaw (regularly linked from LWN, and
you'll notice that the article here was written by the editor of Groklaw)
have done an excellent job of explaining how the system works and how it
is 'gamed' by various players.

(I use America interchangeably with US because that's standard
English-language usage. People south of the US in non-English-speaking
countries often use 'American' as a collective adjective for people from
the American continent(s), but English speakers north of the US get
offended if you call them Americans).

The coverage of Oxford's library

Posted Oct 2, 2005 23:23 UTC (Sun) by dps (guest, #5725) [Link]

Those outside the UK might not be aware that Oxford's library, by which they presumably mean the Bodlean library, is one of 5 copyright libraries in the UK. These libraries can get one *free* copy of anything published in UK, which makes the collection very complete.

Indexing this vast collection so users can find the relevant material, and which of Oxford's many libraries hold it, is a major problem. Fears about the impact on book sales are misplaced, as access to most this collection requires a bod card. If you have not studied or worked at Oxford university you probably will have a major problem getting a bod card.

Copyright infringement, a tort?

Posted Oct 6, 2005 13:57 UTC (Thu) by alext (guest, #7589) [Link]

"Yes. You are an infringer," because you made a copy.

I suppose I should check but does a copyright holder sue in tort? If so they have to show damage. If they can't show damage (at least in the UK) they aren't going to get anything. I suppose they could seek an injunction but that would be a waste of money because Google say tell us if you want to opt out. I'd hope any court on that basis would make the copyright holder pay the costs of getting the injunction.

What would be great is if the defense showed the copyright holder (Claimant) had profited by the search inclusion and the Claimant was therefore ordered to pay everything they benefited as anti-damages. Basically saying if you sue for damages and it turns out you had actually made a profit the amount of damages is actually a negative and the only way to cancel a negative is to pay out in the direction that results in a balance.

stop regulating incidental copies

Posted Oct 11, 2005 16:39 UTC (Tue) by pdundas (guest, #15203) [Link]

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.