Sohn on Fair Use in the Journal

by on December 18, 2006 · 62 comments

Gigi Sohn had a great response to the Wall Street Journal‘s December 1 editorial printed in letters section of Thurday’s Journal:

There are legitimate and legal uses for posting (typically small portions of) copyrighted material, including for public comment and criticism–guaranteed to the public by a limitation on copyright called fair use. For purposes of fair use, someone posting material online does not need an author’s permission; imagine if a movie critic needed to ask a studio’s permission to critique a movie demonstrated by showing a clip. Google’s service indexes hundreds of thousands of pages of book texts, all to provide brief passages of context in response to a searcher’s specific query. Unless a book is in the public domain or otherwise permitted by the publisher, Google Book Search does not provide the entire text of a book online. Using just enough of a book to show the results of a search is a perfect example of fair use.

Your editorial advocates an unacceptable culture of control. Google and YouTube exist despite individual infringers, not because of them. Your version of rigorous copyright enforcement would prevent tech innovators like Google from giving users new ways to create and access content, while providing no new incentives for content innovators to create. Fair uses of home taping didn’t kill music, video recording didn’t kill TV or movies, and Google and YouTube aren’t going to do it either. These are legitimate fair uses of copyrighted works for which our society is better off, not worse.

It’s important that people understand that Google Book Search displays a tiny fraction of a book’s content. Google’s critics seem to be under the impresion that Google Book Search allows you to view entire in-copyright books. If everyone understood that in reality, the software only displays a handful of excerpts, each of which is only a couple of sentences long, I think that almost any reasonable person would recognize that Google’s in the right. It’s only because the publishers have created the misperception that Google is distributing entire books without the permission of publishers that they’ve gotten a sympathetic ear from the likes of the WSJ editorial board.

Relatedly, Sohn’s point that Google and YouTube have succeeded despite the infringing activity of individual users, not because of them, is important. Unlike Grokster, there really is an enormous amount of non-infringing material on YouTube. The service would continue to be widely used if all the infringing material were taken down. There’s certainly room for debate about how much of the burden of policing infringing content should fall to YouTube, but the more important issue is that copyright law should not shut down a fundamentally legitimate service because a minority uses it for illegal purposes.

  • Doug Lay

    Noel:

    thanks for completely wasting at least 5-7 minutes of my time. I could have spent that time plotting the demise of DRM, the DMCA and all that is good in the world, so you can pat yourself on the back and treat yourself to a cookie.

  • Doug Lay

    Noel:

    thanks for completely wasting at least 5-7 minutes of my time. I could have spent that time plotting the demise of DRM, the DMCA and all that is good in the world, so you can pat yourself on the back and treat yourself to a cookie.

  • http://www.techliberation.com Tim Lee

    Noel, you’ve lost me. Again, I don’t recall ever discussing the philosophical underpinning of copyright and patent rights, so I don’t know how you can speak with such authority about my views. And I have no idea where you get the idea that I “don’t care about innovation, the industry, consumers, economic growth or anything.” I’ve certainly never written anything of the sort. I also have no idea why you think caselaw disagrees with my Cato paper. I’ve certainly spent plenty of time responding to your questions in comments here on TLF.

  • http://www.techliberation.com Tim Lee

    Noel, you’ve lost me. Again, I don’t recall ever discussing the philosophical underpinning of copyright and patent rights, so I don’t know how you can speak with such authority about my views. And I have no idea where you get the idea that I “don’t care about innovation, the industry, consumers, economic growth or anything.” I’ve certainly never written anything of the sort. I also have no idea why you think caselaw disagrees with my Cato paper. I’ve certainly spent plenty of time responding to your questions in comments here on TLF.

  • http://weblog.ipcentral.info/ Noel Le

    TIm, I’m not saying you’ve explicity discussed the philsophical underpinnings of IP, but your views do imply that you hold a solid philosophical perspective on IP.

    There is nothing wrong with taking a natural rights view of IP. But, its important distinquish between the two, and to proceed with your arguments coherently. Personally, I take a natural rights view of copyright, but when I argue about the DMCA or fair use, I’m talking in terms of utilitarienism.

    Tim, every DMCA anti-circumvention case you bring to my attention does not support your views (Real Networks, Blizzard, etc). I’ve looked over the case law as well, and personally I think they could have been written more clearly, but they primarily address reverse engineering that results in infringing products while your Cato paper interprets them as deciding on the act of reverse engineering. Note how courts apply the law, not just their final decision; and keep in mind that reverse engineering happens every day in the industry.

    I don’t think we differ that much on the importance of reverse engineering and interoperability, only to the extent that they should be protected. Even if you looked over DMCA section 1201f case law again, you still might argue that the DMCA stifles innovation because you always argue that more of a good thing (reverse engineering, interop) is the universal solution, while I like a moderate balance.

  • http://weblog.ipcentral.info/ Noel Le

    TIm, I’m not saying you’ve explicity discussed the philsophical underpinnings of IP, but your views do imply that you hold a solid philosophical perspective on IP.

    There is nothing wrong with taking a natural rights view of IP. But, its important distinquish between the two, and to proceed with your arguments coherently. Personally, I take a natural rights view of copyright, but when I argue about the DMCA or fair use, I’m talking in terms of utilitarienism.

    Tim, every DMCA anti-circumvention case you bring to my attention does not support your views (Real Networks, Blizzard, etc). I’ve looked over the case law as well, and personally I think they could have been written more clearly, but they primarily address reverse engineering that results in infringing products while your Cato paper interprets them as deciding on the act of reverse engineering. Note how courts apply the law, not just their final decision; and keep in mind that reverse engineering happens every day in the industry.

    I don’t think we differ that much on the importance of reverse engineering and interoperability, only to the extent that they should be protected. Even if you looked over DMCA section 1201f case law again, you still might argue that the DMCA stifles innovation because you always argue that more of a good thing (reverse engineering, interop) is the universal solution, while I like a moderate balance.

  • http://enigmafoundry.wordpress.com eee_eff

    enigma, thank you for calling me ignorant of the Constitution for saying the court will determine whether this is fair use. In fact, fair use doesn’t appear in the Constitution; it comes from the Sony case, and even then it is limited.

    No I did not say what you have ascribed to me–I pointed out that under the constitution there exists no duty to enacted copyright protections, only that Congress has been given the right to do so. As for the PFF’s fascist tendencies, I stand by that comment. I hve noted a repeated pattern there of admiration of regimes that do not allow free press, for example here:

    http://enigmafoundry.wordpress.com/2006/09/07/p

    And I am very critical of comments such as:

    But fair use is best decided in court, not on blogs, so we shall have to see what comes out of the publishers’ case against Google, if this is in fact fair use or not. Until then, it’s not really helpful for you to write that anyone who disagrees with you is either ill-informed or unreasonable.

    I disagree with that because it exactly through robust and free debate that society establishes its laws, so simply pu someone who wants to limit free debate about an issue of public concern, deserves entirely the appellation FASCIST

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    enigma, thank you for calling me ignorant of the Constitution for saying the court will determine whether this is fair use. In fact, fair use doesn’t appear in the Constitution; it comes from the Sony case, and even then it is limited.

    No I did not say what you have ascribed to me–I pointed out that under the constitution there exists no duty to enacted copyright protections, only that Congress has been given the right to do so. As for the PFF’s fascist tendencies, I stand by that comment. I hve noted a repeated pattern there of admiration of regimes that do not allow free press, for example here:

    http://enigmafoundry.wordpress.com/2006/09/07/progress-freedom-foundation-and-ip-centrals-role-model-the-fascist-police-state/

    And I am very critical of comments such as:

    But fair use is best decided in court, not on blogs, so we shall have to see what comes out of the publishers’ case against Google, if this is in fact fair use or not. Until then, it’s not really helpful for you to write that anyone who disagrees with you is either ill-informed or unreasonable.

    I disagree with that because it exactly through robust and free debate that society establishes its laws, so simply pu someone who wants to limit free debate about an issue of public concern, deserves entirely the appellation FASCIST

  • http://enigmafoundry.wordpress.com eee_eff

    Here is the link to the article reffered to above:

    IP Central & PFF’s Role Model: Fascist Police State

    Simply put debate is important, and if someone says something shouldn’t be debated, they don’t understand what a free society is about.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Here is the link to the article reffered to above:

    IP Central & PFF’s Role Model: Fascist Police State

    Simply put debate is important, and if someone says something shouldn’t be debated, they don’t understand what a free society is about.

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  • http://www.wsboards.com/?mforum=shemalesex DoctorBen

    Huh…don’t know what to say…i’ve had that feeling for about last 2 months, and deÃ??Ã?±ided to put a cam in a bedroom. Shit, my hands are shaking…that dirty slut sucked my cock just twice a year, and look what she is doing with his cock:
    blowjob video – Ã??Ã?§Ã??Ã?¤Ã??Ã?Â¥Ã??Ã?±Ã??Ã?¼ Ã??Ã?¤Ã??Ã?®Ã??Ã?°
    and she also gives in ass:
    free shemale sex cam
    Well, should i catch them and kill them, or invite him and show them tape?
    or just go to court?
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