September 23, 2005
Why I hope Google loses
By Mark McKenna
The blogosphere is abuzz with discussion of the Authors Guild's lawsuit against Google. See here, here, and here, in addition to Eric's post here. UPDATE: this post collects the reaction of a number of commentators.
I don't have that much to add to the doctrinal discussion - I think there's a reasonable fair use defense here, though I think I'm less certain than Larry Lessig is that it would prevail. I think Larry's probably suggesting that it should be fair use more than arguing that it is, and on that score I think he has a lot of allies. But several people, including Eric, have been very skeptical that the fair use defense would work here.
The more interesting aspect of the discussion, I think, is the observation that a loss by Google has much more significant implications than just those for Google Print, since the basic concept is indistinguishable from what search engines do. I think that's right, and that's why I hope Google loses.
Let me be clear - I think Google Print could be a tremendously valuable resource and that copyright owners are foolish to challenge this product, which will make huge numbers of otherwise obscure books available to general audiences. And I think that it's crazy that copyright law would get in the way of this type of venture. But I think it would take a threat to something like Google's core search engine business - which is widely seen as legitimate and hugely valuable - for Congress to create any meaningful restrictions on the scope of copyright protection. And that's ultimately what we need - not some disingenuous attempt by a court to distinguish Google Print from search engines in order to avoid a disastrous result.
Maybe I'll regret having said this in 10 years of Congress doesn't do its job, but in the meantime, I'm rooting for the Authors Guild. Call me crazy.
UPDATE: One of the comments below suggested that Congress was too much in the pocket of the content industry and would force search engines and the like to adopt some type of filtering mechanism if there was a statutory response. I'm skeptical of that, partially because I think there's a constituency supporting Google, but also because I don't think it's that easy to differentiate the search engines from the content providers anymore. Case in point: I understand that Yahoo! is among the big proponents of the US signing onto a broadcasting/webcasting right that has been operational in Europe for a while. So Yahoo! would have to decide which part of its business it would spite on any legislation related to filtering.
It's always risky relying on the good sense of Congress. But assuming that's the ultimate goal, shouldn't we (Google and all of us) be demanding that Congress fix the law irrespective of the Author's Guild lawsuit? I recognize that Congressional decision-making may be fundamentally broke, but if we all seem to agree that search engines are a good idea, why do we need a crisis to codify their existence? Eric.
Posted by: Eric Goldman at September 24, 2005 07:30 AM
If it were up to us, it wouldn't require a crisis, but Congress has shown an inability to recognize the costs of excessively broad copyright protection. So I suspect it will take a threat to something like Google to wake them up.
Posted by: Mark McKenna at September 24, 2005 07:22 PM
The likely result, if Congress were to get involved with protecting search engines, would be
(1) some very narrowly-crafted copyright exemption for creating search engines (and nothing else), plus
(2) a bunch of extra clauses requiring a broad class of information-related service providers (not just search engines) to implement arbitrary technologies like DRM and filtering at the whim of content providers.
Currently both Republicans and Democrats are firmly in the hands of the content cartel lobby. As long as this political situation persists, you don't want Congress getting anywhere near copyright law.
Posted by: Cog at September 25, 2005 01:30 PM
If the legislative response was to Grokster, I'd agree with you. But I think Google is a much more sympathetic counter-story, and it has plenty of money to throw at this issue. So I think there's likely to be a constituency opposing the content industry on this, and that should lead to a different kind of resolution than we normally get.
Posted by: Mark McKenna at September 26, 2005 10:06 AM