Re: Neat summary of Google strategy

From: "Mary E Tyler"
>>> 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.].
>
> Joe, you do "have a choice" and you do have the means to 
> prevent this.
> Use "nofollow" and your robots.txt file and you can exempt 
> your WHOLE
> SITE from Google cache and index. And for that, you have 
> to accept the
> risk of obscurity that goes with not being in a search 
> engine. While
> it may be a tacit deal, it IS a deal and Google offers 
> something of
> value in return for making a couple of copies of your 
> page.

dej,

Well.... That is less than a choice; more a gun to the head. 
But my point was that robots.txt cannot distinguish content, 
which seemed the matter being pursued earlier. However, the 
suggestion you now add, that Google offers something in 
return, ignores both that other search engines exist, and 
that Google does not have the right to usurp the law of the 
land.

By the way I don't accept the analogy either. The Google 
exposure is more a matter of of the changing poster for the 
paper or simply the ability to pick it up and check the 
content before the purchase decision [doesn't apply to he 
coin slot containers of course, but we don't have these in 
the UK]. On the whole, let me add, newspapers have no idea 
who they sell to, except for the few direct subscriptions.

I usually
> say that 'exposure" is of no value unless it's EXPOSURE. 
> And being in
> the Google index is exposure that is EXPOSURE. It's of 
> value. And, I
> do believe that Google could make a very good argument 
> that their
> index and associated cache fall under fair use.You could, 
> I suppose,
> litigate it.

If Google were the *only* exposure on he net it might be 
possible there would be a case; but neither actually 
applies. And there is a distinct difference between website 
content and a book being sold, whether ebook or other. There 
are many ways of selling, and the added value of Google does 
not give it any right to ignore law or the rights of others.

Any website which is freely accessible is intended to be 
visited, and apart from direct invitation search engines are 
a major source of attraction, though not the only one. 
Whether caching is justified is an issue which is 
interesting, but is not of great contention if it is merely 
cached, rather than seen as material to be utilised as 
though Google were rightsholder.

Holding of books on their databases, without an agreement 
with the appropriate licence holder is a breach of law and 
colloquially theft, which is made worse with the threat of 
publishing the material without reference to the owner or 
holder.

ho is dumb enough to try to
> litigate a search engine's cache. But you could try it. 
> I'm not sure
> you'd find a judge dumb enough to take the case, because 
> not only do
> you have another option for preventing a cache copy from 
> being made,
> you can also send a DMCA takedown and very likely get 
> removed from the
> cache and index altogether.

Which makes Google look like the breacher of rights it is.

>
> I don't think this one could be litigated without 
> involving a lot of
> laughter at your expense.

It depends which content you mean. My concern is books. But 
online content is also copyright, and any stated terms for 
use are still legal and expected to be followed by any 
responsible organisation or individual. Appearance on a 
webpage or in an ebook does not make the content fair game 
for all comers. Frankly Google's use of the 'fair use' 
argument is mere 800lb gorilla challenge, not a valid claim; 
deep pockets always win in a litigious society, and the law 
is made a nonsense of '...a h'ass'..

>
>>> 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.
>
> Which would have ALL been solved had congress done 
> something useful
> with orphan works in the last session. They refused to. 
> Orphan works
> are a BIG problem. Google's settlement may not be the best 
> route, but
> it's the only one that's actually been worked out by 
> anyone. At some
> point, SOMETHING must be done about orphan works.
>
> dej

I still fail to see merit in the orphan works argument. It 
makes no difference whether you or I know who is the holder 
or owner of rights. It is still not ours to do with as we 
wish. If, for any particular work, there is a case to be 
made then that is where the courts fit the bill of deciding.

Now I find myself getting a little red i nthe face when 
Americans talk about 'Congress doing something', or 
referring to US history of copyright, as though that settles 
an argument. Copyright is an international thing, 
irretrievably made a unity by the net.

You suggest 'something must be done about orphan works'. Why 
not just try a) recognisisng there may be deals you know 
nothing about for any copyright material, b) There is no way 
to determine if a work is an orphan or not, and c) There is 
no satisfactory definition for an orphan work, just as 
out-of-print and commercially available can have too many 
interpretations to be be a meaningful language for any thrid 
party to make a decision.

Actually I would like to see  *any* satisfactory argument 
for *any* 'orphan work' being vital to be reprinted. The ony 
thing that seems to me to enter into it is pound or dollar 
signs in someone's eyes. The idea that because someone would 
like a copy of something they had a right to assume decision 
making on it applies in no other commercial field I know of.

Joseph Harris 



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