The Ethics of Private Property: Google & the Courts

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One of the reasons we need the most serious, competent, and Constitutional rights-minded justices on the Supreme Court is graphically illustrated in the Kelo vs New London case that allows the government to forcibly transfer private property to other private entities 'for the public good'. A similar case is underway in Florida and that too will probaby be headed for the supreme court.

So will the following case.

Do you think Google should be able to link you to anything out there? Do you think it should be legal for somebody to post your own creative works that you had no intention of posting on the Internet?

It's not hard to appreciate a concept of a one-stop shopping center for all the world's knowledge. But at what cost to private property rights?

Search for property rights -- David Keene (The Hill)

Private property, real and intellectual, is under constant attack these days by folks who insist they represent the public good. . . .

. . . .Consider the ongoing battle between Google and the U.S. publishing industry over whether Google can, in the name of making searchable information available to the public, ignore copyright law and make an author's work available through its search engine, regardless of the author's wishes and without paying royalties for doing so.

The ability to "google" a subject makes research in today's world easier than ever in the past, and many of us would be almost lost without being able to do so. As anyone with a computer knows, more information is available via this research route than one can imagine.

There is no doubt in my mind that if absolutely everything out there was fed into the Google data base so that we could search it for the information we seek, life would be even easier for us. It would also be good for Google's search engine to move from convenience to indispensability.

To say that there would be a demand for such a comprehensive research engine is to understate the obvious, and the folks at Google are intent upon providing just that. They have decided to scan the complete contents of various libraries, and a number of libraries have worked with them to get this done. The problem is that, with the exception of books that are "out of copyright" and therefore in the public domain, the scheme involves taking the intellectual property of hundreds of authors with neither permission nor compensation something that the authors who labored to create the works are understandably not all that happy about.

To be fair, Google says it won't make entire copyrighted texts available or printable to Google users and argues that this limit makes what it is doing legal and should actually increase book sales to those who want the entire text. Many authors and publishers aren't buying the argument; they are in court to stop the "taking" of their property by a private corporation that argues its right to do so on the basis of public and social good.

To them, the question is not whether the database Google wants to create will be useful to others but whether its potential usefulness justifies Google's "taking" with neither permission nor compensation. Unless a compromise can be reached, this question will have to be addressed by the courts.

Given the nature of the decisions our courts are handing down these days, one would be foolish to bet on the outcome of this case. The United States takes the position internationally that intellectual-property rights are sacrosanct and deserve protection. Congress and the White House are, in fact, quick to confront nations that pirate our music, films and books.

Whether our courts will be as ready to protect these same private rights within our borders is another question. The success of the argument that the social benefits of ignoring an author's right to control his own output supersedes the traditional right to intellectual property right protection remains to be seen.

Fortunately, the text of our Constitution is available through Google, so maybe the judges hearing the case will find it.

Keene, chairman of the American Conservative Union, is a managing associate with Carmen Group, a D.C.-based governmental-affairs firm (www.carmengrouplobbying.com).
http://www.thehill.com/thehill/export/TheHill/Comment/DavidKeene/100405.html

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ok so this could be interesting, could you just lay out the specifics you are commenting on (not the google case) but rather the private property vs common good issue?

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In Kelo vs New London, the community took private property for use by a private developer. The argument was that the developer would improve the property, create economic opportunities, jobs, etc. and this was for the common good.

In the Google case, Google is scanning whole works into their system that can be accessed by an on line search. The people who spent considerable time and effort researching and producing those works and whose livelihoods may depend on the royalties from book sales, etc. see this as a theft of their private property. It is a virtual certainty that its going to work its way up through the courts, likely all the way to the Supreme Court.

The question is: should Google be able to expand its scope and thus enrich itself at the expense of private citizens being able to control the sale and distribution of their intellectual property?

I'm sure other examples will apply here as well. There has even been a discussion here on A2K as to the ethics and legality of posting whole copyrighted documents. However, such documents are already on the internet.

Google is adding a lot of material to its data bases that have never been posted on the internet before.

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This case is in no way similar to Kelo. The copyright holders aren't being deprived of anything here. There is absolutely no inconvience to them at all.

IMO, the question will be settled on whether or not Google's use meets the "fair use" standards (which are fairly loose!). There are 4 "weightings" that the court will look at (if it gets that far) under fair use.

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

(2) the nature of the copyrighted work;

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

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

I think #3 and 4 will win Google the suit if it gets into the courts.

Keene is ignoring the fair use provisions with his claims that Google is ignoring copyright law (apparently he doesn't mind that HE is ignoring the law himself).

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Ok let's start with Kelo vs New London, my understanding quite likely wrong, is that the supremes rendered their decision based on jurisdiction. It was not a fed issue and so turned the entire question back to local government. At least, that's my understanding and, if so, then the supremes would have needed to become "activist" in finding that the feds did have jurisdiction. What, exactly, is the complaint here? Am I simply ignorant?

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If you can get the information you want on line, you won't buy my book. That has a financial impact on me. (Theoretically speaking.) Should I have the right to decide when and if my book is posted on the internet? Should the publisher?

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Ok, I hear that Foxfyre, I am not being deliberately dense. you have framed this topic as a consitutional issue and I am only asking for information as to what words or phrases in the constitution deal with this issue.

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There are multiple considerations in Kelo but the primary consideration was whether or not a government entity can take property under emminent domain and then give that property to another private person/corporation. The central deciding point was whether or not doing so served a "pulic purpose". The court decided that the local legislatures were in the best position to decide what does or doesn't serve a public purpose and since CT state law allowed for the taking under the circumstances that the City of New London would prevail.

This is another departure between this case and Kelo. There is no government entity involved in the Google case.

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Foxfyre wrote:

If you can get the information you want on line, you won't buy my book. That has a financial impact on me. (Theoretically speaking.) Should I have the right to decide when and if my book is posted on the internet? Should the publisher?

As Keene conceeds in his article, the entire work wouldn't be made available. If someone is able to get everything they need from one or two displayed paragraphs from your book they weren't going to buy it anyway. They'd go to a library or bookstore and just get the paragraph they need/want and you wouldn't get any compensation for that either.

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The Constitutional principle in Kelo was Article IV. The plaintiffs in the Google case will use the same Article in an attempt to defend their intellectual property from being taken without paying for it. The implication is that Google won't be just publishing a paragraph or two, but will be excerpting whole sections from the documents they scan.

According to the Keene piece, they have already scanned whole libraries with assistance from the libraries. And some of the authors and/or publishers are not wanting their works to be included in Google searches. Shouldn't they have the right to say no?

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Foxfyre wrote:

The Constitutional principle in Kelo was Article IV. The plaintiffs in the Google case will use the same Article in an attempt to defend their intellectual property from being taken without paying for it.

??? Kelo never touched on Article IV. It was a 5th Amendment case.

"The question presented is whether the city's proposed disposition of this property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution."

Article IV isn't involved in this case either.

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Quote:

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ok I could go with that but only if you are advocating a major "activist" role for the court which includes "intrepeting" the intent.

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Foxfyre wrote:

The Constitutional principle in Kelo was Article IV. The plaintiffs in the Google case will use the same Article in an attempt to defend their intellectual property from being taken without paying for it.

Wow. You couldn't be more wrong. Well, you could be, but very few others could be so breathtakingly, so comprehensively wrong.

Kelo v. New London involved a question of governmental takings: that's a fifth amendment question, not an article IV question (article IV deals with relations between the states -- it has nothing to do with property rights).

As for the Google case, neither article IV nor the fifth amendment would be involved, since this isn't a case in which there is a potential governmental taking. Indeed, it wouldn't involve a constitutional question at all (article I, section 8 gives congress the power to grant copyrights, but that's not at issue here). Rather, the case would simply be one of statutory construction. Kelo and the Google case, therefore, are nothing at all alike.

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Well you're right about Article IV. (That will teach me to work from memory)

But in Article V, do you think the phrase "....nor shall any person.....be deprived of life, liberty, or property without due process of law;......is purely related to actions by the Federal government? Or is this something the Federal government would rule on as it worked up through the courts?

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Foxfyre wrote:

Well you're right about Article IV. (That will teach me to work from memory)

But in Article V, do you think the phrase "....nor shall any person.....be deprived of life, liberty, or property without due process of law;......is purely related to actions by the Federal government? Or is this something the Federal government would rule on as it worked up through the courts?

That's not article V, that's the fifth amendment (articles and amendments are different). It only applies to governmental action. Google is a private actor, so it could never violate the fifth amendment.

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My copy of the Constitution I have in my hot little hand calls it Article V. But okay, Fifth Amendment. You're saying that the principles there do not apply to everybody and all circumstances, but apply only to people involved in Federal action? I don't think so.

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Foxfyre wrote:

You're saying that the principles there do not apply to everybody and all circumstances, but apply only to people involved in Federal action?

I don't think that's what he's saying at all. The 5th Amendment is places limitations on government entities at all levels. Google isn't a government entity ergo, the 5th Amendment doesn't apply.

What is at issue here is Copyright law - not any Constitutional issue.

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fishin' wrote:

Foxfyre wrote:
You're saying that the principles there do not apply to everybody and all circumstances, but apply only to people involved in Federal action?

I don't think that's what he's saying at all. The 5th Amendment is places limitations on government entities at all levels. Google isn't a government entity ergo, the 5th Amendment doesn't apply.

What is at issue here is Copyright law - not any Constitutional issue.

At first blush it would appear to be a simple issue of Copyright law. But I think we're seeing a much larger issue here re intellectual property. What I think is going to be the issue is whether intellectual property is afforded the same force of legal protection as real property is supposed to have.

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Foxfyre wrote:

At first blush it would appear to be a simple issue of Copyright law. But I think we're seeing a much larger issue here re intellectual property. What I think is going to be the issue is whether intellectual property is afforded the same force of legal protection as real property is supposed to have.

Errr... ok! lol You just chased that one around in a circle.

I'll agree with you that the issue is intellectual property. No doubt about that at all.

But since copyright law is the statutory protection for intellectual property that is recorded and published we're right back to it being a simple issue of copyright law. Wink

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Foxy's connection is not entirely lacking in merit, but the initial post is missing a few steps. A theoretical takings claim might be alleged against the public libraries (or other public entities) that supply Google with copyrighted works (but not against Google directly, as Google is private). I don't pretend to be an expert in IP takings, but I don't think it would be frivolous to assert a takings claim for copyrighted material if Google's government suppliers' use violated the Copyright Act (assuming no fair use). Cf. Florida Prepaid, 527 US 666 (1999) (implying that state patent infringement might rise to the level of a takings). Such a claim would thus include statutory construction of the Copyright Act and a hypothetical Fifth Amendment (incorporated by the Fourteenth Amendment for states) takings claim.

This hypothetical suit would be broadly analogous to Kelo, as the alleged takings by public libraries would be for the benefit of a private corporation. Yup, it's a stretch, but the analogy is possible. I think then again, I'm a bit tipsy right now la la la...

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The Ethics of Private Property: Google & the Courts

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