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The Ethics of Private Property: Google & the Courts

 
 
Foxfyre
 
  1  
Reply Wed 5 Oct, 2005 05:43 pm
You are saying I don't want to do that. I didn't say I don't want to do that. I am saying that I am approaching this from a different perspective.

Until Kelo, the laws related to private property were far more absolute. When fair compensation was provided, pPrivate property could be taken by government for public use, yes. In my view, Kelo v New London corrupted that concept by taking private property for private use on the pretext that it benefited the community. John Locke is surely thrashing in his grave over that one.

It is the same kind of thing with Google. They can say that it is a publc service and even benefits the writers, but nobody can deny that the one most benefitted will be Google. Next time maybe they take your place that you love in order to build a new Wal-Mart that will provide a great place for you to shop--would you feel benefitted? Or IBM takes just one little concept of your patented product because 'the public needs it' and it isn't taking the whole thing. Would you feel violated or not?

I still think the authors have a legitimate gripe here.
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fishin
 
  1  
Reply Wed 5 Oct, 2005 06:05 pm
Foxfyre wrote:
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.


You chose to use the word "taking" here which, in the context of this discussion, is a loaded word. "Taking" in terms of copyright law requires two steps. The 1st is the act of creating a copy and the 2nd being doing something with that copy. No one disputes that Google is scanning the entire texts of these books/papers. The Fair Use provision on Copyright Law allows any library or archive to do that in plain and unambigous language. The only valid part of the complaint then is what Google does with the text after they've copied it and they claim that their intent is to only display a small portion.

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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.


There isn't really much persuading to do. You can maintain that this right to grant or refuse permission is absolute but the law have never been written or interpreted to support that contention so there isn't much of a legal basis for it. As a moral principle it's nice as a conceptual idea but it has some problems as well.
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fishin
 
  1  
Reply Wed 5 Oct, 2005 06:15 pm
Foxfyre wrote:
Until Kelo, the laws related to private property were far more absolute. When fair compensation was provided, pPrivate property could be taken by government for public use, yes. In my view, Kelo v New London corrupted that concept by taking private property for private use on the pretext that it benefited the community. John Locke is surely thrashing in his grave over that one.


Not true. Private property has been taken and then sold or given to other private entities long before Kelo. Kelo was just the most recent case. If you read Kelo you'd see that they refer to several prior cases (i.e. Hawaii Housing Authority v. Midkiff, Berman v. Parker, etc..) in their decision.

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It is the same kind of thing with Google. They can say that it is a publc service and even benefits the writers, but nobody can deny that the one most benefitted will be Google.


Why do you persist with this "public service" thing? Where has Google stated that there is any public service? They haven't! The people claiming that Google is somehow providing a public service are all in opposition to Google in these complaints.

What empirical evidence do you have that Google will benefit more than the authors will? Google may make out better than any single author but it is not proven by any means that they will do better than the sum total of all of the authors.

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Next time maybe they take your place that you love in order to build a new Wal-Mart that will provide a great place for you to shop--would you feel benefitted? Or IBM takes just one little concept of your patented product because 'the public needs it' and it isn't taking the whole thing. Would you feel violated or not?


That's a lovely emotional appeal... Maybe the authors can try that in court and see how far it gets them.
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Foxfyre
 
  1  
Reply Wed 5 Oct, 2005 06:41 pm
When I argue in a court of law, I do it differently. When I argue a principle I do what I do. I would like to establish a principle first, and then test it by the letter of the law.

And it is Google who is claiming a benefit for the public good out of this....even claiming a benefit for the authors. If you think that's their motive, swell. I am skeptical.
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fishin
 
  1  
Reply Wed 5 Oct, 2005 06:48 pm
Foxfyre wrote:

And it is Google who is claiming a benefit for the public good out of this....even claiming a benefit for the authors. If you think that's their motive, swell. I am skeptical.


Nonsense. Google's public comment on the threatened suits has been that it "directly benefits authors and publishers by increasing awareness of and sales of the books in the program". They have made NO claim of any benefit to the general public. Those claims have from from Keene and his ilk.
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Foxfyre
 
  1  
Reply Wed 5 Oct, 2005 06:57 pm
Google said
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"We regret that this group chose to sue us over a program that will make millions of books more discoverable to the world -- especially since any copyright holder can exclude their books from the program," Google said in its corporate blog.


The issue isn't excluding, however, but the inclusion without the author's permission. The authors don't think they should have to contact Google (and by implication everybody else in the world) to say they don't want their stuff included in a search engine.
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nimh
 
  1  
Reply Thu 6 Oct, 2005 05:05 am
Foxfyre wrote:
When I argue in a court of law, I do it differently. When I argue a principle I do what I do. I would like to establish a principle first, and then test it by the letter of the law.

OK, I've been following this thread with interest, although truth said it appears to be in repeat mode now - but here I am confused.

The way I understood you initially, Foxfyre, is that your gripe and Keene's was, at least to a substantial degree, with the threat of "actvist courts" diverging from the letter of the law and imposing some new-fangled concepts not carried by the Constitution.

If thats the problem, then the desired outcome here would be for the court to judge as narrowly according to the text of existing law, the Constitution foremost, as possible.

Now, however, you appear to be doing yourself what you accused the opposition of doing in your initial argument.

You come up with and try to formulate - "establish" - a principle that you would consider laudable, important and obvious - the absolute right of the author to have a say in his work's use.

Then you want to go and see how some appropriate clause or phrase in the letter of the law can be found that would be able to carry that principle through in a courtcase.

Wouldn't that be the epitome of encouraging "activist" jurisprudence?
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 07:22 am
Nimh writes
Quote:
OK, I've been following this thread with interest, although truth said it appears to be in repeat mode now - but here I am confused.

The way I understood you initially, Foxfyre, is that your gripe and Keene's was, at least to a substantial degree, with the threat of "actvist courts" diverging from the letter of the law and imposing some new-fangled concepts not carried by the Constitution.

If thats the problem, then the desired outcome here would be for the court to judge as narrowly according to the text of existing law, the Constitution foremost, as possible.

Now, however, you appear to be doing yourself what you accused the opposition of doing in your initial argument.

You come up with and try to formulate - "establish" - a principle that you would consider laudable, important and obvious - the absolute right of the author to have a say in his work's use.

Then you want to go and see how some appropriate clause or phrase in the letter of the law can be found that would be able to carry that principle through in a courtcase.

Wouldn't that be the epitome of encouraging "activist" jurisprudence?


Do I think the court is wrong in Kelo vs New London? Absolutely. There has been a 200-year presumption that one's personal property was sacrosanct and though there were legitimate reasons for government to take it for public use, it could not be done without due process of law and without fair compensation for the property. Kelo interpreted the law differently than it had been traditionally interpreted before setting a potentially pervasive and dangerous precedent. Thomas cited other cases they used as precedence, but the fact is, it was wrong and it should not stand. The government should never be able to take anybody's property against their will and give it to somebody else for private use. This is what judicial activism can do.

The internet has opened access to information in an unprecedented manner. Students no longer have to go to the library or sometimes even crack a book at all to do research. I don't have a problem with Amazon.dot com posting their very limited excerpts in order to sell books--and I don't have a problem with short excerpts being inserted into NYT book reviews. But based on the lawsuits against websites that are posting copyrighted material without permission, there is precedence for protecting owners' rights of such material.

If you read the links I posted a few pages back, their assertions notwithstanding, it is obvious that what Google is doing and wanting to do is provide access to much more extensive material than promotional excerpts.

The principle here is whether one's intellectual property shall have the full protection of the law or whether once it is out there, anybody can take it at will and use it for whatever. How the court rules on this one is going to decide that to a large degree. I think a orginalist/constructionist judge will see the problem and the potential for harm to the owners of the property. I think an activist judge might rule in favor of something like the benefit for the greater good or some such nonsense.

I think these things should be debated and we should not always depend on the points of the law to dictate our position or to dictate right and wrong. The law sometimes is bad law with untended bad consequences.
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dyslexia
 
  1  
Reply Thu 6 Oct, 2005 07:44 am
Quote:
You come up with and try to formulate - "establish" - a principle that you would consider laudable, important and obvious - the absolute right of the author to have a say in his work's use.

Then you want to go and see how some appropriate clause or phrase in the letter of the law can be found that would be able to carry that principle through in a courtcase.

Wouldn't that be the epitome of encouraging "activist" jurisprudence?

Foxfyre, how about an answer?
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 08:03 am
I thought I just did.
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joefromchicago
 
  1  
Reply Thu 6 Oct, 2005 08:43 am
Foxfyre wrote:
I think these things should be debated and we should not always depend on the points of the law to dictate our position or to dictate right and wrong. The law sometimes is bad law with untended bad consequences.

Spoken like a true activist judge.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 09:00 am
Thomas wrote:
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?


Sure. I would like to contribute these guidelines on copyright law interpretation for libraries and educators by the copyright office:

http://library.findlaw.com/1999/Mar/11/128626.pdf

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One reason Google is offering this service is to serve its customers purposes such as research.


Not all "research" is covered under fair use. Google has stated plans to sell content and they aren't scanning the books for their own research purposes. They are scanning the books for profit.

Whether the books can be used by others for research purposes has no bearing on whether Google's profiting from providing them is legal.

Similarly, if I photocopy and sell textbooks it is illegal whether or not the end users intend to use the material for "research".

Here's a marginally related prediction: Google is currently working on revolutionizing online content through "micropayments". They will release a payment system and they plan to realize "micropayments".

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(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.


A very strong one. Commercial impact is a strong consideration in the fair use cases I have been reading.

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(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.


I am no lawyer, but some of what they are talking about here is things like whether a work is "consumable". A book is very much consumable.


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(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.


Google is displaying several pages at a time. Google is duplicating the whole. It is child's play to circumvent Google's safeguards against viewing more than fair use would allow.

But I think that the issue here can't be restricted to what Google divulges to the web user because what Google duplicates is also regulated by law.

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(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.


The alternate side of the coin is that Google is providing content for free. Meaning that some readers may sate their informational needs through Google and neglect to buy the book entirely.

I think the former will be the case in most cases, but only one of the latter is needed to establish illegitimacy in their actions.

I have, in the past, created proof of concept that Amazon's own booksearch can be used to read entire copyrighted works free of charge. Thing is, Amazon has permission to open up this exploit and Google does not.

Amazon invites publishers to leverage their point of sale and publishers agree to the duplication of their works and the rules under which they are viewed.

Google simply goes to libraries and scans their books.

For those following similar cases note that Yahoo formed the Open Content Alliance that plans to do something similar to Google, only with the permission of the copyright holders.

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Summing up, I think Google Print is fair use.


I think it's nowhere close to fair use, but I think that the web will continue to redefine fair use through "facts on the ground".

Search engines already index billions of copyrighted texts and through their caching they duplicate and disseminate copies and the nature of the work is important in that in these cases the pages are not "consumable" like with books and music.

The law is not well suited for this digital age. Even laws meant to address the digital age make this an odd case.

For example, if I were to sue Google for this. I would do so under the DMCA law (a bad one that I disagree with), which forbids (vaguely) websites from helping others to circumvent copyright.

It's vague and the precedents so far are pretty heavy handed (for example, Google has removed many simple links to other sites that are violating copyright because of this law).

Here is one example Search Google for "kazaa lite" and scroll to the bottom of the page to see the results of that DMCA complaint.
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 09:02 am
So you advocate blindly following the law no matter how ill advised, Joe? Or maybe, just maybe the public debate should be what principles we value and the law should reflect that? In many cases it already does.

There is no way that Kelo vs New London did, however. And using the 'fair use' principles as the sole basis to decide the Google case could set the same kind of dangerous precedent.

I believe that a people of laws must be governed by those laws. I also thing that principle should precede law.

And why is it that liberals are unable to debate an issue without making their opponent the issue?
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 09:10 am
And Craven thank you. You said pretty much what I have been trying to say, but you said it so much better. I do think how this case is decided could have very far reaching implications for the creators of the books, poetry, and other literary works that we have all come to know and love.
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sozobe
 
  1  
Reply Thu 6 Oct, 2005 09:14 am
Craven's points didn't address the activist judge angle, though.

Quote:
So you advocate blindly following the law no matter how ill advised, Joe? Or maybe, just maybe the public debate should be what principles we value and the law should reflect that? In many cases it already does.


Again, what if this if not "activist" judging? A non-activist judge follows the law no matter how ill-advised. An "activist" judge says, "That's what the law says, but the law should reflect what principles we value" -- such as equality for everyone regardless of gender or color of skin, for example.

So we're back to Dys' excellent definition from another thread: An activist judge is who reaches decisions that are disagreeable to me.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 09:15 am
fishin' wrote:
The copyright holders aren't being deprived of anything here. There is absolutely no inconvience to them at all.


You are saying that they would not be deprived of a single cent of revenue? I guarantee that I will buy even fewer books if this is legally sancitoned. When Amazon print came out (legal because they have permission) it negated the need for me to buy many books.

Just the other day I was on my way to Amazon to buy a book (ISBN: 0764571427) and ended up using their Search Inside feature to read the page I was interested in and ended up not needing the book.

No inconvenience? Google requires them to opt-out and puts the responsibility for vigilance against abuse of their own work through Google on them. Google paused their book scanning and gave publishers until November 1st to opt out. This inconveniences some publishers, according to them:

http://www.ecommercetimes.com/rsstory/46226.html wrote:
Richard Hull, executive director of the Text and Academic Authors Association, called Google's approach backwards. Publishers shouldn't have to bear the burden of record-keeping, agreed Sanfilippo, the Penn State press's marketing and sales director.

"We're not aware of everything we've published," Sanfilippo said. "Back in the '50s, '60s and '70s, there were no electronic files for those books."


How can you state with absolutism that no copyright holder is being deprived of revenue or being inconvenienced?
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 09:28 am
As an aside in response to an earlier comment: In my opinion, an activist judge is not one who rules in a way disagreeable to me. An activist judge is one whose ruling creates law where none existed before.

In this case, if a judge rules that Google is allowed to take the intellectual property of others for their own profit and can do so with impunity, that will definitely be making new law, and a very dangerous one at that.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 09:30 am
fishin' wrote:

I doubt Google would use "public benefit" as their primary argument.


I hope not, it would be a legally bankrupt argument that publishers are prepared for:

Sally Morris wrote:
To endorse Google's library initiative is to say "it's OK to break into my house because you're going to clean my kitchen," said Sally Morris, chief executive of the UK-based Association of Learned and Professional Society Publishers. "Just because you do something that's not harmful or [that is] beneficial doesn't make it legal."



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I doubt any court will see the displaying of a few paragraphs from a several hundred page book as being "substantial" and I don't think any reasonable court will see any future loss of income to a publisher or author from having a few paragraphs of their work publicly displayed.


I agree. But not because I think they would be right, but because I think they don't understand technology and like others here they will probably not see that Google is probably not going to be able to limit all users to a few paragraphs.

No matter what Google does, if the entire work in indexed and available to searching I can extract the entire work if I so desire. Most people won't have the technical savvy to do so but Google is ultimately opening up the ability to peruse the entire work and simply trying to limit it.


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Google will argue (as Amazon did) that someone that finds and reads those paragraphs would be more likely to buy the book than if they had no way of locating it to begin with.


Amazon has publisher permission to index books. Google does not. These are not comprable in law but are comparable in technology and I cited an example of Amazon's technology being used to deprive a publisher of a sale above.

I do think Google Print can work out well for many publishers. But if it doesn't work out for a single publisher Google's decision to do it without their permission will come under fire.

Amazon, Yahoo and others doing this get permission first. Google simply sends scanners to libraries and gets millions at a time and does so without permission (note that some libraries such as Harvard's are restricting Google's scanning out of copyright concerns).

Google's reason for not asking permission is that they could only get 15% (by their estimate) of the world's books if they adopted such nuisances.
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sozobe
 
  1  
Reply Thu 6 Oct, 2005 09:33 am
Foxfyre wrote:
So you advocate blindly following the law no matter how ill advised, Joe? Or maybe, just maybe the public debate should be what principles we value and the law should reflect that? In many cases it already does


Foxfyre wrote:
As an aside in response to an earlier comment: In my opinion, an activist judge is not one who rules in a way disagreeable to me. An activist judge is one whose ruling creates law where none existed before.


There is a disconnect between these two statements. If a law is ill-advised, you seem to think it should not be "blindly" followed. What is the alternative?

Your second paragraph in your last post seems inaccurate to me, but I'll let people with more legal knowledge than I get that one.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 09:39 am
Craven de Kere wrote:

Just the other day I was on my way to Amazon to buy a book (ISBN: 0764571427) and ended up using their Search Inside feature to read the page I was interested in and ended up not needing the book.


I got my example wrong.

I was on my way to buying Car PC Hacks (ISBN: 0596008716) and Geek My Ride (ISBN: 0764578766), not Car Hacks and Mods for Dummies (ISBN: 0764571427) that I referenced above.

I was able to use Amazon's Search Inside feature to get the information I wanted out of Geek My Ride, but was not able to do so with Car PC Hacks.

Car PC Hacks is in my shopping cart, waiting for my next Amazon purchase. Geek My Ride is not.

This is an example of how such indexing can cost a publisher revenue. In Amazon's case the publisher can opt in and decide whether or not they accept the risks in exchange for the potential rewards. In Google's case they will do it without permission and require publishers to discover their actions and act against it.
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