The Ethics of Private Property: Google & the Courts

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.

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.

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?

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.

"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.

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?

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?

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.

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?

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

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.

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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.

Summing up, I think Google Print is fair use.

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.

The copyright holders aren't being deprived of anything here. There is absolutely no inconvience to them at all.

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."

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

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."

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.

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.

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

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.

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.