Re: Neat summary of Google strategy

From: "Bill Janssen"
> joseph harris <[email protected]> wrote:
>
> I won't comment on the morality of it all, but I believe 
> that copyright
> law controls whether or not they have the right to make 
> copies of the
> original.  That the copyright owner has implicitly allowed 
> them to make
> those copies -- in fact, has encouraged people to make 
> copies, by the
> act of putting the original on a Web server -- seems to me 
> to
> substantially weaken any prosecution of folks who have 
> done what the
> copyright holder encouraged them to do, and made copies. 
> But, IANAL --
> just a sometime juror.

Bill,

As I see it you are right and you are wrong. ;-)  Yes, it is 
implicit in the technology that the act of delivering a 
readable text and /or graphics [together with or without 
formatting and design] requires a process of technical 
repetition. However the method of distribution generally 
means the document is not recompiled until it gets to the 
recipient machine. At no point is it a copy for sale, or a 
competitor to the author's copy (and by implication 
distribution) rights.

But the rights are not implicitly given up nor the same in 
all sets of circumstances. In general unless there is a 
rightsholders or owners declaration of free or part free or 
CC the assumption is that the recipient has a right to see 
material on the terms offered. Breach of those terms 
happens; that cannot mean it is right to encourage or make a 
breach.

There is no right to print or to pass on to others, unless 
the terms allow; copies for different machines or folders 
remains a grey area.

>
> If the originals were protected from arbitrary copying by 
> some scheme,
> such as site authorization or even a robots.txt file, I'd 
> think the
> legal grounds would shift substantially.

The copying is not arbitrary (as I understand the word) and 
the setting of terms under copyright law is the only lawful 
basis for use. Robots.txt is not adequate to this area as I 
unerstand it.

>
>> The basis of search engines is that they publish a 
>> related
>> link to a search enquiry with a description that at one 
>> time
>> was found in the html <title> and <description> tags. 
>> this
>> has been extended in all sorts of ways, mainly by Google,
>> without testing in any court and apparently without 
>> regard
>> to the wording of the Acts involved.
>
> Indeed.  Think about the "Cached" link in most Google 
> search results.

This has not been tested in a court so far as I know, and my 
opinion remains that Google has no right to place copyright 
matter on a permanent [in the meaning of persistent beyond 
technical need rather than for all time] database. All 
copying is copyright and is in the gift of the rightsowner 
with just one or two exceptions - mostly under fair use 
[U.S.] and fair dealing [U.K.].

>
> Of course, the book copying that's the current flashpoint 
> over Google
> has nothing much to do with this.  Google is copying paper 
> books by
> fairly strenuous physical means.
>
> Bill
>

Well not quite. The total complaint is much wider than this. 
With the libraries deal and with this settlement Google has 
made deals to assume copyright with people who do not have 
copyright in  their gift. The untested areas are holding 
copyright material on a database, physical copying [as you 
note] which seems to me no different to photocopying and 
now, through the agreement, claiming the right to decide, 
pretty much on its own say-so, whether it can print for 
physical sale somebody else's copyright book or not. In all 
cases the rights of the originators are sidestepped.

For some originators, like book illustrators, there is not 
even a payment in prospect. The weakness of the system for a 
rightsowner is that Google chooses opt-out; i.e. it assumes 
the right of someone else.

Joseph Harris 



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