Can't Stop the Signal: The Library in Space and Transformational Copyright Law-Specifying Fair Use in the Public Interest
Posted: 1 Mar 2009
Date Written: January 30, 2009
If it were the case that full-text copying of entire books presents an obvious prima facie case of copyright infringement clearly unprotected by any application of the fair use doctrine as currently understood, the Google library in space would lead to an easy legal conclusion. Or if, instead, it were the case that copying by a virtual machine for purposes limited to indexing and subsequent recall and retrieval of short fragments is very like a natural person's reading and then remembering prior references (and is either clearly not a violation or is obviously a privileged fair use), then the Google library project would be equally easy to resolve under ordinary copyright law. It seems odd, however, that the problem is claimed to be easy, but in two opposite directions simultaneously. The Library project is both difficult and important because it occurs in an objective cyberspace having characteristic values and evident consequences. If not handled with an understanding of cyberspace, the juridical reaction to the library in space runs the risk either of retarding cyberspace by crippling its objective values, or of disfiguring the law itself.
The October, 2008, proposed settlement agreement does not clarify matters. The parties to the proposed agreement have agreed to disagree on the underlying legal issues, but have come to terms about how to divide resulting revenues. The mere fact of the existence of such an agreement, assuming it is approved by the court, will almost certainly itself influence the development of the practice relating to new technological uses of information claimed to be protected by intellectual property law.
This article proposes that the law would be better served by a candid adoption of a new, mediating factor for fair use in cyberspace: "the nature and place of use," specified for rule-based application in copyright law. This factor would provide a recognizably copyright-style solution that preserves cyberspace values while providing a predictable, principled and workable rule of law. The new factor takes into account the possibility of both direct and secondary liability, using ideas from new institutional economics, and with an appreciation of new technological uses. The recent settlement of lawsuits against Google only underscores the importance of getting the legal issues right.
Keywords: Google library, cyberspace, new technological uses, copyright, fair use, nature and place of use
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