Lawrence Lessig makes some interesting points in his Wired piece on the Google suits. A 1909 law that gave copyright holders (and the publishers with whom they make agreements) “the exclusive right to control copies of their works” didn’t anticipate that the only way to index digital material (or, in fact, to read it) is by copying. He urges Google to stay the course.
A rich and rational (and publicly traded) company may be tempted to compromise – to pay for the “right” that it and others should get for free, just to avoid the insane cost of defending that right. Such a company is driven to do what’s best for its shareholders. But if Google gives in, the loss to the Internet will be far more than the amount it will pay publishers. It will be a bad compromise for everyone working to make the Internet more useful – and for everyone who will ultimately use it.
This truly is a tipping point because the implications – all of them – are enormous.
Fair use has been dying the death of a thousand cuts for ages now, because all the financial and lobbying muscle has been on the side of those who see copyright as an absolute (and seemingly divinely inspired) good. Although the reason I value fair use is for its noncommercial uses, I couldn’t be more pleased that someone with a financial interest is stepping up as its defender. So often individuals surrender their fair use rights because they can’t hope to stare down the legal team of a major corporation. I hope Google won’t follow that path, so that fair use has a chance at a fair fight this time.
My urge to have these issues adjudicated at trial has more to do with wanting some guidance in the emerging area of digitization than whether or not Google’s actions qualify as fair use.
I would like to see Google win any case that turns on a fair use analysis; I’d like more just to see fair use issues get a full hearing in court. As I wrote in October [ http://www.copycense.com/2005/10/google_shouldnt.html ], the parties in these lawsuits settle out of court too often, depriving other interested parties the opportunity to benefit from the direction a court decision may bring.
Even if a court decision is adverse to Google and its supporters, such a decision provides some guidance to those who wish to engage in similar projects. A confidential settlement would deprive libraries, archives, and other parties the chance to act appropriately.
K. Matthew Dames
Executive Editor, CopyCense
http://www.copycense.com