Editore"s Note
Tilting at Windmills

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October 22, 2005
By: Kevin Drum

GOOGLE vs. THE WORLD....The Washington Post has a couple of op-eds today providing pro and con views of Google's project to scan the world's books and allow people to search them online. For copyrighted books, the search will return only a small extract of the book, something that Google argues is covered by the existing fair use doctrine. Conversely, Nick Taylor, president of the Authors Guild, opposes Google's project as an infringement of copyright, suggesting that when Google made a unilateral decision about what counts as fair use and what doesn't, it set itself up as "the arbiter of a legal concept it has no right to interpret." Dave Munger cries foul:

Google has done anything but usurp the role of government, because copyright law doesnt give government the role of determining whether a specific use of copyrighted material falls under the fair use guidelines. The only way for that to be achieved is by filing a lawsuit.

True enough. After all, there's no Office of Fair Use Resolution in the federal government. At the same time, that sort of makes Taylor's point, doesn't it? The only way to figure out what the law says is for someone to sue Google and get a judge to rule on it.

For many people, especially writers who benefit from copyright but would also benefit from Google's project, this case is excrutiatingly hard to form an opinion about. On the one hand, it's a truly stupendous undertaking, a boon to both popular and scholarly research that's hard to overestimate. What's more, Google's restriction of search results to small snippets demonstrates considerable sensitivity to the rights of the original authors. As a matter of public policy, it seems like a no-brainer that something like this should not only be legal, but positively encouraged.

On the other hand, it's true that this isn't a use that authors had in mind when they originally published their books. And as with other database-driven collections, there's a big difference between an author excerpting one book for the purpose of illustration or criticism and a huge corporation excerpting millions and making money off it.

If it were up to me, I'd vote with the public interest. I sometimes feel that if the increasingly expansive view of copyright asserted today had been around a couple of centuries ago, the Supreme Court would have ruled that lending libraries were illegal. But just as circulating libraries have a social value that far outweighs the minimal intrusion they produce in an author's ability to control the distribution of her work, the same is true of Google's project. The technology has changed, but the principle is the same.

At the same time, it's too bad this has to be decided by the courts. It's really a job for Congress, after all. Unfortunately, both Republicans and Democrats appear to be so thoroughly bought and paid for by the content industry that it's pretty much inconceivable they'd do the right thing if it were brought to a vote. So it's off to court we go, with the hope that existing law will be enough. I hope Google wins.

Kevin Drum 1:29 PM Permalink | Trackbacks

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