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The Ethics of Private Property: Google & the Courts

 
 
Cycloptichorn
 
  1  
Reply Thu 6 Oct, 2005 09:43 am
It's the first step to the end of Intellectual Property laws, which frankly are contrary to the interests of a free and progressive society....

Google is just thinking ahead. You won't be able to stop it; controlling the flow of information is the most difficult thing in the world to do.

Secrets want to be known; information wants to be shared, and tries as hard as it can to do so. The advent of the digital age has removed the primary cost of sharing information, and therefore the old models of profit off of information scarcity are doomed to die sooner or later. Better to be on top of the situation than to sit around trying to force the old paradigms to still exist; just look at the RIAA and how badly they've reacted and dealt with online music. Books are next...

I don't blame the industry for trying to hold on; a lot of middlemen are going to lose their jobs. But, f*ck em for holding back progress. I really could care less.

Cycloptichorn
0 Replies
 
Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 09:44 am
fishin' wrote:
Why do you persist with this "public service" thing? Where has Google stated that there is any public service? They haven't!


They certainly come close:

Google, in a statement about the lawsuit wrote:
We regret that this group has chosen litigation to try to stop a program that will make books and the information within them more discoverable to the world.


Google's legal defense will not likely center on "public service" but they will play up the benevolent education angle for PR purposes.

fishin' wrote:
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.


You really think they aren't making claims of benefit to the public?
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 09:47 am
Sozobe writes
Quote:
Quote:
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


Quote:
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.


No, no disconnect though as I often do in haste, I expressed myself unclearly.

My point is that the law should not dictate our ethics or morals. Our ethics and morals should dictate what the law should be. Principle should precede law.

Once the law is there however, it is the job of the judge to rule based on its letter and intent. To change that to fit the judge's personal ideology is judicial activism by my definition.

The Google case could go either way. As Craven is so eloquently illutrating here, there is real potential for grave harm to writers and publishers if a judge does not hold fast to the Constitutional principle of property or does not consider intellectual property pertinent to that principle.

Does that compute better?
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 09:52 am
Cycloptichorn wrote:
It's the first step to the end of Intellectual Property laws, which frankly are contrary to the interests of a free and progressive society....


Progress costs money sometimes.

Quote:
Secrets want to be known; information wants to be shared, and tries as hard as it can to do so. The advent of the digital age has removed the primary cost of sharing information, and therefore the old models of profit off of information scarcity are doomed to die sooner or later. Better to be on top of the situation than to sit around trying to force the old paradigms to still exist; just look at the RIAA and how badly they've reacted and dealt with online music. Books are next...


The book industry won't be affected nearly as much as the music industry. But the music industry is, indeed, a good example of how to fudge a paradigm shift like digital distribution.

Quote:
I don't blame the industry for trying to hold on; a lot of middlemen are going to lose their jobs. But, f*ck em for holding back progress. I really could care less.


Sometimes I feel this way. I really want to see the entire world's books digitized and getting permissions will be a hard way to do it.

But at the same time Google's arrogance in circumventing the authors and copyright holders in the process is galling. Other projects exist by Amazon, Yahoo, the Internet Archive, the Gutenberg Project and various EU governments that do not disregard the copyright holders so.

I think Google should have started with an opt-in program. If the copyright holders really do benefit then those who see this will join.

Because Google pushes the law on copyright and trademark so often, I have mixed feelings about their project from a moral standpoint.
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dyslexia
 
  1  
Reply Thu 6 Oct, 2005 09:55 am
Ok, so I ask, is this a topic re Google-copy right laws or judicial activism?
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sozobe
 
  1  
Reply Thu 6 Oct, 2005 09:56 am
Quote:
Our ethics and morals should dictate what the law should be. Principle should precede law.


As Joefromchicago said, spoken like a true activist judge.

Don't you think?

From that formulation, you really seem to be saying that the law can and should be superceded by principle -- so that brings it right back to whether you agree with the principle or not. "Principle" is a rather subjective term.

Personally, I agree -- I think that if the law is wrong, it should be changed or at least adjusted in a way that makes it right -- and I don't object to activism in that context.

Just seems like you can't have it both ways. Either the law should always be followed exactly as written, period, or there is room for judicial activism.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 10:03 am
Foxfyre wrote:
Once the law is there however, it is the job of the judge to rule based on its letter and intent. To change that to fit the judge's personal ideology is judicial activism by my definition.


Who decides when it is a "change"? They must interpret the law, and so far every instance I have seen where someone uses "activist judge" merely has meant that their interpretation differs with that of the judge or that the individual simply disagrees with the judge.

Quote:

The Google case could go either way. As Craven is so eloquently illutrating here, there is real potential for grave harm to writers and publishers if a judge does not hold fast to the Constitutional principle of property or does not consider intellectual property pertinent to that principle.


I was just commenting on Google Print, not the concept of activist judges.

Copyright law was not written for a case like this, and the judges must interpret as best they can. Whether or not someone calls it "judicial activism" usually just depends on whether they agree with the judge or not.

By your definition, no matter what judges do in this case it will be "judicial activism". They will have to interpret copyright laws that were not written with this kind of case in mind, and doing so will establish a legal precedent.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 10:14 am
Cycloptichorn wrote:

Even more, people love Google; fantastic brand recognition and loyalty, intergration into browsers, servers, and desktop searches; I fully expect Google to supplant microsoft within 5 years.


The thinclient model needs to take off. And Google is reviving the concept in the press.

If Microsoft ignores web as a platform or bungles it you may well be right.

Quote:
Scary? Well, at least it works well, and reliably. And they seem to have the best repositories of good ideas and minds out of any of the leading internet companies....


People who hate Microsoft should hate Google even more if their goals are realized.

As another marginally related aside Google is planning to blanket cities with free WIFI and gain control over user access points (one of it's current weaknesses in comparison to competitors AOL, MSN and Yahoo).

They have submitted a proposal to San Fransisco. Google should scare people if they do business on the internet.
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sozobe
 
  1  
Reply Thu 6 Oct, 2005 10:16 am
Craven's point about "interpretation" is a good one, I prefer that to the usage of "change". There is an interesting op-ed in the NYT about that today from a lawyer who used to be an umpire. A quote:

Quote:
In fact, judges must routinely interpret the law -- just as umpires must interpret the rules of the game. This is not a sign of activism, but an inherent part of either job. What differentiates individuals is how they approach this task of interpretation.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 10:21 am
fishin' wrote:
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.


This is not true. There are many cases in which an individual's copying of a work can't be proscribed by the publisher, even if the individual is not doing so for a library or archive.

Quote:
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...


Not all "archives" are legal. Try to start an archive of copyrighted music in mp3 format and put it on the web and see what happens. ;-)
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Cycloptichorn
 
  1  
Reply Thu 6 Oct, 2005 10:41 am
I suppose the question exists, is a giant monopolistic entity to be feared, regardless of whether or not they do a great job at their service, which just happens to be pretty much free?

The computer biz will inevitably face such cycles of consolidation and then branching; it is the nature of the technological progress that drives computers that one company tends to jump way out ahead, and then dry up as its competitors become more innovative. Google is merely by far the most innovative out of any of the non-hardware computer companies out there....

I guess I see them as being 'nerdier' than other companies; they certainly seem to understand the Power User far better than any other company...

Cycloptichorn
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 10:46 am
Craven writes
Quote:
Copyright law was not written for a case like this, and the judges must interpret as best they can. Whether or not someone calls it "judicial activism" usually just depends on whether they agree with the judge or not.

By your definition, no matter what judges do in this case it will be "judicial activism". They will have to interpret copyright laws that were not written with this kind of case in mind, and doing so will establish a legal precedent.


Are you sure that the issue here will be exclusively copyright laws? Or is the principle of private ownership the issue? Is the principle of rights to private property the same for intellectual property and real property? Or your collection of bottle caps?

As you note, copyright laws don't really cover this issue.

I can see a judge opting for the traditional interpretretation of personal property rights and ruling on that basis. This would not be creating 'new law' but would rather be applying a principle of the old law.

It isn't that different from adding gender or whatever to the equal rights amendment as specific circumstances come up that make that appropriate. That is not making 'new law' but rather rationally identifying a component that clearly falls within the principle of the old law.

In the Google case, a judge could (correctly in my opinion) declare intellectual property to be a person's private property and subject to the same protections. That would not be making new law. It would be a logical interpretation of the old law.

Or the judge could go with Cyclops opinion that it should all be in the public domain and intellectual property is a different commodity than other personal property. That would definitely be new law.
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Craven de Kere
 
  1  
Reply Thu 6 Oct, 2005 10:56 am
Foxfyre wrote:

Are you sure that the issue here will be exclusively copyright laws?


I'm no lawyer, but my take is that this issue is exclusively a copyright issue.

Quote:
As you note, copyright laws don't really cover this issue.


No no, they do cover this issue. They simply did not have the digital age in mind. But that's par for the course with codification.
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 11:04 am
Craven writes
Quote:
No no, they do cover this issue. They simply did not have the digital age in mind. But that's par for the course with codification.


Well, if you are right, my (very ancient by now) studies of Copyright Law taught us that it protected intellectual property. Writers could sell their rights to a publisher or whatever, but permission to use copyright material trumped any other concern. The more recent 'fair use' rules compromise that earlier principle to some degree, but in my opinion do not trump it to the degree that Google is attempting to do.

If the Judge applies the principle of what Copyright laws are for and rules in favor of the plaintiffs, in my opinion this will not be new law. If the judge rules that Google is not violating the principle of copyright in this case, I think that would definitely be new law. I am open to being convinced otherwise.
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joefromchicago
 
  1  
Reply Thu 6 Oct, 2005 11:32 am
Foxfyre wrote:
So you advocate blindly following the law no matter how ill advised, Joe?

I advocate following the law. And so do you, except for those occasions when you don't like the law. Then you want some judge to change it.

Foxfyre wrote:
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.

I'm all in favor of changing bad laws. Those changes, however, should take place in the legislatures, not from the benches. That's where you and I differ.

Foxfyre wrote:
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 you believe that a judge should be guided by his/her principles rather than by the law. So once again you show that you are in favor of activist judges.

Foxfyre wrote:
And why is it that liberals are unable to debate an issue without making their opponent the issue?

I don't know. When I talk to a liberal, I'll ask.
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 12:00 pm
Quote:
joefromchicago wrote:
Foxfyre wrote:
So you advocate blindly following the law no matter how ill advised, Joe?

I advocate following the law. And so do you, except for those occasions when you don't like the law. Then you want some judge to change it.

You draw a very strange conclusion about what I want from what I have been saying. And it is not only strange, but it is wrong.

Quote:
Foxfyre wrote:
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.

I'm all in favor of changing bad laws. Those changes, however, should take place in the legislatures, not from the benches. That's where you and I differ.


If you had paid attention, you would have seen that we do not differ at all on that point.

Quote:
Foxfyre wrote:
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 you believe that a judge should be guided by his/her principles rather than by the law. So once again you show that you are in favor of activist judges.


Again you draw strange conclusions about what I believe. And those strange conclusions are again wrong.

Quote:
Foxfyre wrote:
And why is it that liberals are unable to debate an issue without making their opponent the issue?

I don't know. When I talk to a liberal, I'll ask.


Okay, how that this is settled could we please focus on the topic instead of what I think and believe.
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nimh
 
  1  
Reply Thu 6 Oct, 2005 12:54 pm
But wasn't (at least part of) the topic Keene's assertion, represented here by you, that the Google case threatens to become another instance of activist judges veering away from the Constitution?

What does that assertion even mean when you then turn around and say that you yourself are in favour of letting principle take precedence over the letter of the law when judging cases (like these)?

That's the contradiction within your argument here that people have picked up on, and that you don't seem to be willing to address.

Any exasperation expressed thereabout concerns your argument, not your person.
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 01:00 pm
nimh wrote:
But wasn't (at least part of) the topic Keene's assertion, represented here by you, that the Google case threatens to become another instance of activist judges veering away from the Constitution?

What does that assertion even mean when you then turn around and say that you yourself are in favour of letting principle take precedence over the letter of the law when judging cases (like these)?

That's the contradiction within your argument here that people have picked up on, and that you don't seem to be willing to address.

Any exasperation expressed thereabout concerns your argument, not your person.


Okay, Nimh now focus. There is a huge difference between letting principle take over the letter of the law and principle preceding law. I said the latter not the former. All law should reflect our principles. Our principles should not be determined by the law. Do you see the difference?

One principle I strongly advocate is that the people, through their legally elected representatives, should determine what the law should be. The function of the courts is to be sure that the letter and intent of the law is followed. Their function is not to write the law as the judge thinks it should be.

If we encourage judges to write their own laws, then what recourse do we have when SCOTUS does that? Impeach the justices and start over?Amend the constitution to deal with every little glitch (such as this Google case) that comes along? The government would come to a screeching halt.

Far better that we have good judges who understand their role and how it differs from the Legislative and Executive roles. And then we'll get along pretty well so long as we elect good people to decide what laws shall govern us.
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nimh
 
  1  
Reply Thu 6 Oct, 2005 01:37 pm
So then I still dont get what you argue in defence of Keene's suggestion that what's at stake here in the Google case is "activist" jurisprudence.
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Foxfyre
 
  1  
Reply Thu 6 Oct, 2005 01:48 pm
Then you haven't read the thread carefully.
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