The Ethics of Private Property: Google & the Courts

Cycloptichorn wrote:

Sheesh, you're missing the big picture with Google; they are looking to take over a whole host of functions relating to our information age; and moreover, they are already on the path to doing so.

Through no fault of their own, I might add. If only Google provides a decent search engine, all decent search engines are provided by Google. That's elementary logic, and nothing that should count against Google.

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(Just noting that I've been enjoying this thread and have learned a lot.)

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Thomas wrote:

I admit I'm getting a little impatient here, because you are making originalists such as myself look like idiots. (Which might actually earn you some praise from joefromchicago. )

Don't worry. Nothing that Foxfyre might say would make me change my opinions about original intent jurisprudence and its practitioners.

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Regarding the Copyright question, it looks to me that Foxfyre's argument is being short shrifted by some rather conclusory statements regarding Fair Use. Google's use of the copyrighted material in question does not plainly fall into any of the explicit statutory exceptions (research, teaching, etc.) under Fair Use. While that list of exceptions is not exhaustive, the listed activities bear a common attribute: They are not predominantly commercial in nature, hence the first factor of the multifactor test given in the statute. While this is only one factor, it's a critical factor - perhaps the most important. See e.g. Harper & Row, 471 U.S. at 562 (1985). Google's use is predominantly commercial, and even if they only use one or several copyrighted pages, they still might not qualify for Fair Use. It's a toss-up. Note also that the issue here isn't whether they've copied all of the pages - they surely have: all of the pages must be copied to perform a full text search. For Fair Use purposes, their limited use of these pages cuts in their favor, but that isn't determinative. Herein lies a subtle difference between Google's actions and Amazon's actions: Amazon only needs to copy several pages, which might be de minimus anyway, even without a Fair Use defense. I'd also wager that Amazon has obtained permission from the copyright holders.

I haven't the time or knowledge to give a detailed evaluation of the other factors, but I think the consensus here - that Fair Use obviously applies - is quite premature. If you want a more detailed analysis than you'll get in this thread, check out Duke Law & Tech. Journal

Finally, I will say that it doesn't take activist court to reach either conclusion about Fair Use in this case (so yes, this isn't the best example of judicial activism). But to get back to the initial post, the past few decades have witnessed a notable curtailment of traditional property rights under U.S. law. It's telling that traditional property rights have been somewhat less celebrated than the more ethereal substantive due process rights.

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My search program came up with a lot of hits on this issue. Here are some samplings:

What the Authors' Guild says
Authors Guild Sues Google, Citing ""Massive Copyright Infringement""SOURCE

InternetWeek Story

New.Com Story

Excerpt
SAN FRANCISCO (Reuters) - The Authors Guild, a U.S. writers advocacy group, sued Google Inc. on Tuesday in federal court, alleging that the Web search leader's bid to digitise the book collections of major libraries infringes on individual author's copyrights.

The lawsuit, filed in the U.S. District Court for the Southern District of New York against Google, names as co-plaintiffs The Authors Guild and writers Herbert Mitgang, Betty Miles and Daniel Hoffman.
Hoffman was poet Laureate

The lawsuit seeks class action status, asks for damages and demands an injunction to halt further infringements.

More. . . .
SOURCE

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Oh, and thank you Step! You are obviously far more knowledgable on this stuff than I am, and I appreciate a more scholarly argument, however tentative, for the opposing view.

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Foxfyre: A few posts back, you suggested: "Okay let's go with Copyright Law as the basis." Why don't we do just that, walk through the statute, and consider how it would properly apply? I am not a lawyer, and I get seriously embarrassed when I read some confident opinions about the law that I wrote just a year ago. There is a good chance that what I am about to write will embarrass me in a year too. But laws are written for the people, not for the lawyers, and nobody can keep us from trying.

Quote:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

One reason Google is offering this service is to serve its customers purposes such as research. It's an "I know it when I see it" consideration, and people can come out either way, but when I see Google print, my best judgment tells me that it fits into the statute here, especially considering the vague "such as" language.

Quote:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

At this point, the statute gets very interesting in the context of Mr. Keene's and your court bashing. Compare this with the case where your constitution talks about "commerce among the several states", and the Supreme Court decides that this phrase covers the individual who grows in the privacy of his own home the marijuana that he smokes. On that topic Joe and me can exchange several threads full of arguments whether this interpretation is truthful or manipulative, responsible or doctrinaire. But this text is entirely different. Even if interpreted strictly, the statute delegates to the courts the work of "determining whether the use made of a work in any particular case is a fair use." It only gives four fairly general guidelines on how the determining is to be done. Because the statute explicitly leaves the courts so much leeway in deciding cases, the contention that activist courts perverty the authors' fundamental rights reduces to hot air.

Quote:

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

Google's use is commercial, which is an argument against it being fair use.

Quote:

(2) the nature of the copyrighted work;

I don't understand the above provision, so will refrain from interpreting it. If a one of the lawyers in this thread knows what this means, I will be grateful for any enlightenment he might offer.

Quote:

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

Google is going to offer three pages or so from books that are typically hundreds of pages long. In my "know it when I see it" judgment, this is a small enough percentage to be fair use. But it is not a slam dunk.

Quote:

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

The main effect of Google Print will be to increase the visibility of books to customers, which increases the market for and the value of the copyrighted work. Offsetting this, market and value will be decreased to the extent that the customers are buying the book for the specific snippet published by Google. It would be up to the court to decide which of the two effects is larger, but I would be surprised if the value-boosting effect did not dominate.

Quote:

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This does not apply to this case.

Summing up, I think Google Print is fair use, but as Steppenwolf suggests, this isn't sufficiently clear to bet my life on it. Then again, Mr. Keene's and Foxfyre's claim was not that it's not a slam dunk for Google. Their claim was that it is a slam dunk against Google -- indeed, that this is so obvious that only an activist court would decide otherwise. On the face of it, this claim of theirs is not supported by the language of the fair use clause of the Copyright Act.

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Thomas, I am not a lawyer. Other than for a couple of business law courses and the legal side of journalism, I am unschooled in the fine points. Whatever errors you may have made in your notations here, you have certainly gotten more right than I will probably ever know.

But I do know there are honest differences of opinion on the intent of fine points of law, and reasonable disagreements in opinion on how the courts rightfully rule on it. And we both know that there have been times that conventional wisdom has been thrown out and laws overturned on a technicality based on a particular judge's viewpoint. Others don't hold up under scrutiny by a higher court.

But even apart from the fine points of the law, to me there is a larger issue and that is the presumption of the sanctityof property rights. All the legalese in the world doesn't persuade me that the writers who own rights to their creative works should not be able to dictate how such works will be used.

I am also mildly bothered by the author of the thread starter's observation that if Google prevails, it can make itself virtually indispensable. Microsoft did that and the world of computers has expanded and thrived under its dictatorship. But we also know how quality and newer and better innovations have also suffered as a result o their self-induced monopoly. I would not like to see that happen as a result of bad law in this case.

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Thomas wrote

Quote:

Summing up, I think Google Print is fair use, but as Steppenwolf suggests, this isn't sufficiently clear to bet my life on it. Then again, Mr. Keene's and Foxfyre's claim was not that it's not a slam dunk for Google. Their claim was that it is a slam dunk against Google -- indeed, that this is so obvious that only an activist court would decide otherwise. On the face of it, this claim of theirs is not supported by the language of the fair use clause of the Copyright Act.

I beg your pardon? Where did I say this was a slam dunk against Google? I am squarely on the side of the writers, yes, and I am always concerned that an activist judge can screw anything up, including this. You feel confident that you can draw such assumptions of my intent because I see this from a different angle than you do?

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Foxfyre wrote:

I beg your pardon? Where did I say this was a slam dunk against Google? I am squarely on the side of the writers, yes, and I am always concerned that an activist judge can screw anything up, including this. You feel confident that you can draw such assumptions of my intent because I see this from a different angle than you do?

No, I think I can draw such conclusions from the pattern of your errors and Mr. Keene's. They all go in the direction of "our courts are depriving people of their intellectual property rights". None of you committed any error in the direction of saying: "The authors may not have intellectual property rights that courts would take away by deciding in favor of Google."

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Thomas wrote

Quote:

No, I think I can draw such conclusions from the pattern of your errors and Mr. Keene's. They all go in the direction of "our courts are depriving people of their intellectual property rights". None of you committed any error in the direction of saying: "The authors may not have intellectual property rights that courts would take away by deciding in favor of Google."

Okay I read that four times and I still don't know what you said.

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Foxfyre wrote:

If it is all so harmless and up-and-up, even beneficial to book sales, then why are publishers and authors in court in an attempt to stop it?

What makes you think that they actually want to stop it??? They could very well be using the threat of lawsuits as a means of extracting some sort of monetary concession out of Google.

I'd guess that if Google offered to pay the publishers $2 for every time someone looked at one of their books they'd withdraw their threats and start looking for ways to spend their windfall in a hurry. It's all about the Benjamins! Wink

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Fishin writes

Quote:

What makes you think that they actually want to stop it??? They could very well be using the threat of lawsuits as a means of extracting some sort of monetary concession out of Google.

I'd guess that if Google offered to pay the publishers $2 for every time someone looked at one of their books they'd withdraw their threats and start looking for ways to spend their windfall in a hurry. It's all about the Benjamins!

I haven't seen any publishers reported as named in the suits--at least there weren't any named in the links I posted. It would seem that the Publishers would have a vested interest in the outcome of the case, however, and they may be ultimaitely included if the plaintiff is successful in a class action suit. Or can only individuals be included in a class action suit?

And sure, the writers might agree to payment of a modest royalty for every look. I haven't seen any evidence that the writers are even specifically objecting to be included in the Google search engine. What they are objecting to is the taking of their intellectual property without their permission and the party taking it will profit from it.

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Foxfyre wrote:

My search program came up with a lot of hits on this issue. Here are some samplings:

What the Authors' Guild says
Authors Guild Sues Google, Citing ""Massive Copyright Infringement""September 20, 2005 Press Release
Contact: Paul Aiken
[email protected]

....

"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."

This is another one of these grand pronouncements where the lawyer obviously read page 1 of the law but neglected the footnotes on page 46.

Yes, an author or publisher has exclusive rights in determining when and how a work can be copied. As long as the people doing the copying aren't a part of a "library or archive" at least. If they are however, the Fair Use exemption allows them to make copies without the author's/publisher's consent. They'll have a hard time explaining how Google isn't an archive though...

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They can show that Google stands to benefit materially from the taking of private property, however. That, I think, give sthe authors their best argument to prevail.

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Foxfyre wrote:

They can show that Google stands to benefit materially from the taking of private property, however. That, I think, give sthe authors their best argument to prevail.

No it doesn't. Content that falls under the fair use exception isn't the author's private property in the first place. If the excerpts posted by Google fall under that exception, there is no property for Google to take.

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They can try and I'd think they'd raise the issue.

This has always been one of the problems with copyright law. The laws are extremely vague so almost anything can be claimed on either side.

The Court's problem is drawing the fine line. Yup, Google could gain a material benefit. A student copying a page from a book might pass a class that allows them to complete their degree too. That degree is likely to get them a higher paying job than if they didn't have a degree so they'll benefit materially as well. Does that negate the fair use provision from protecting the student's use?

Material gain may be a factor in the considerations but the fact that there may be a material gain doens't automatically disqualify the exemption. If Google can show an even larger material gain on the side of the authors/publishers from the free advertising it can tip the scales in their favor too.

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My previous post is false, and I wish to correct it as follows: (A2K wouldn't let me edit it anymore.)

Foxfyre wrote:

They can show that Google stands to benefit materially from the taking of private property, however. That, I think, give sthe authors their best argument to prevail.

No it doesn't. Content that falls under the fair use exception isn't taken if Google posts those excerpts. By the same logic, if you own a piece of land that has a public right of way, and I am walking on it, that isn't a taking of your property by me either.

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But reading the news stories I posted earlier today re the suit involved, it appears that Google is in fact taking much more than excerpts. And how efficient would a search engine be if it could not plug into at least an except of any part of a book? I don't pretend to know what all is involved here, but I am not looking at it within the framework of legal technicalities. I'm looking at it as a principle of the people's right to grant or refuse permission for use of their private property. So far nobody has persuaded me that this is not a valid observation. I can be persuaded, however, if the argument is sufficiently compelling.

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Foxfyre wrote:

I'm looking at it as a principle of the people's right to grant or refuse permission for use of their private property.

This right has never been as absolute as you state it here. For example, it has never been considered a violation of this principle that real estate can come with rights of way which authorise people to use your property without your permission. It has never been considered a violation of property rights that oil companies can drill away oil that lies beneath your real estate, or that planes can fly a mile above it, without your permission. Likewise, it doesn't have to violate the principle of private property that people can publish small pieces of your work without your permission. To decide this, you need finer tools than the sledgehammer of fundamental rights you are applying. You have to go into the framework of legal technicalities, which you say you don't want to do.

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The Ethics of Private Property: Google & the Courts

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