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.

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About Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.

Read more articles by Tim Lee.

  • http://weblog.ipcentral.info Patrick Ross

    Sigh.

    If only people were as informed and reasonable as you, they’d agree with you? Is that what you’re saying?

    Well, I’m as informed. It’s no secret Google makes available only snippets; we had Google’s Alan Davidson say so at a Congressional Seminar on the subject a year ago. He also admitted that Google has to copy the entire book in order to offer those snippets. And he further admitted that Google chooses not to seek permission to make those copies, but will cease doing so if specifically contacted by the owner, thus converting our opt-in copyright system to an opt-out one.

    I have a very difficult time seeing the copying of an entire book as fair use, even if only portions at a time are shared. Google disagrees with me. You disagree with me. 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.

  • http://weblog.ipcentral.info Patrick Ross

    Sigh.

    If only people were as informed and reasonable as you, they’d agree with you? Is that what you’re saying?

    Well, I’m as informed. It’s no secret Google makes available only snippets; we had Google’s Alan Davidson say so at a Congressional Seminar on the subject a year ago. He also admitted that Google has to copy the entire book in order to offer those snippets. And he further admitted that Google chooses not to seek permission to make those copies, but will cease doing so if specifically contacted by the owner, thus converting our opt-in copyright system to an opt-out one.

    I have a very difficult time seeing the copying of an entire book as fair use, even if only portions at a time are shared. Google disagrees with me. You disagree with me. 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.

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

    Patrick,

    You’re right, I overstated my case a bit, and I apologize for making such a blanket statement. There are indeed some reasonable, well-informed people who disagree with Google’s position. However, in my experience, many of the people who criticize Google do so based on a flawed understanding of how the program works. Even many advocates of stronger copyright protections, such as your colleague Jim DeLong have expressed sympathy for Google’s position in this case.

    As for making a copy of the entire book, Google does the same thing with websites. Unless the website specifically opts out (by posting a robots.txt file), Google will make a copy of the entire site and store it on their servers. If Google Book Search is copyright infringement, then every search engine now on the market is infringing.

    There are lots of other examples. The Supreme Court ruled that it’s fair use to make a copy of an entire television program for later viewing. It’s widely agreed that it’s fair use to make a copy of a CD for personal use. What matters in a fair use analysis isn’t that a copy is made, but whether the use made of the copy is lawful or not. In the case of Google Book Search, the copy simply sits on Google’s servers, never to be accessed in their entirety by anyone. It’s hard to think of a more innocuous use of an unauthorized copy.

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

    Patrick,

    You’re right, I overstated my case a bit, and I apologize for making such a blanket statement. There are indeed some reasonable, well-informed people who disagree with Google’s position. However, in my experience, many of the people who criticize Google do so based on a flawed understanding of how the program works. Even many advocates of stronger copyright protections, such as your colleague Jim DeLong have expressed sympathy for Google’s position in this case.

    As for making a copy of the entire book, Google does the same thing with websites. Unless the website specifically opts out (by posting a robots.txt file), Google will make a copy of the entire site and store it on their servers. If Google Book Search is copyright infringement, then every search engine now on the market is infringing.

    There are lots of other examples. The Supreme Court ruled that it’s fair use to make a copy of an entire television program for later viewing. It’s widely agreed that it’s fair use to make a copy of a CD for personal use. What matters in a fair use analysis isn’t that a copy is made, but whether the use made of the copy is lawful or not. In the case of Google Book Search, the copy simply sits on Google’s servers, never to be accessed in their entirety by anyone. It’s hard to think of a more innocuous use of an unauthorized copy.

  • http://weblog.ipcentral.info Patrick Ross

    Tim,

    Thank you for acknowledging the overstatement.

    When my mother’s latest novel is published this spring, she cannot put a robots.txt file in the bound copy that will prevent others from copying it. She (and her publisher) can tell Google not to copy it, but if what Google is doing is legal, then how will she be able to opt out to all the other folks copying books for “fair use” who don’t let her know they’re doing it? As for the Sony decision, that was time-shifting for in-home personal use; it didn’t say you could record a TV show on your VCR so that you could set up a business making various scenes available to others to view. And you say that Google will have these books sitting on their servers, but in fact they’ve promised to give digital copies to the five libraries that loaned them the hard-copy books to begin with. We also don’t know down the road what other “fair use” ideas Google might come up with regarding these full-book copies, nor do we know how safe they’ll be kept from hackers.

    We know what Google wants to do now but have no control over their future actions. We don’t know what will happen with the copies on their servers, or the ones sent out to libraries. We don’t know what other activities might be launched by others, unbenownst to authors, based on this new fair use championed by Google. What we do know is that in none of these scenarios are the copyright holders being contacted.

    It’s telling that Google, who was already working with publishers through Google Print with an opt-in approach, then bypasssed the publishers and got their hard copies from the libraries, who (not being copyright owners) placed no such burdens. If Google really wants to do this service, they already have the phone numbers of the large and small U.S. and global publishers — and thanks to consolidation in the publishing industry, where most houses we’re familiar with share corporate parents, Google could place all the calls in an afternoon. If it’s the publicity bonanza Google says it is, the publishers will say yes. But they will have been consulted, which is critical.

  • http://weblog.ipcentral.info Patrick Ross

    Tim,

    Thank you for acknowledging the overstatement.

    When my mother’s latest novel is published this spring, she cannot put a robots.txt file in the bound copy that will prevent others from copying it. She (and her publisher) can tell Google not to copy it, but if what Google is doing is legal, then how will she be able to opt out to all the other folks copying books for “fair use” who don’t let her know they’re doing it? As for the Sony decision, that was time-shifting for in-home personal use; it didn’t say you could record a TV show on your VCR so that you could set up a business making various scenes available to others to view. And you say that Google will have these books sitting on their servers, but in fact they’ve promised to give digital copies to the five libraries that loaned them the hard-copy books to begin with. We also don’t know down the road what other “fair use” ideas Google might come up with regarding these full-book copies, nor do we know how safe they’ll be kept from hackers.

    We know what Google wants to do now but have no control over their future actions. We don’t know what will happen with the copies on their servers, or the ones sent out to libraries. We don’t know what other activities might be launched by others, unbenownst to authors, based on this new fair use championed by Google. What we do know is that in none of these scenarios are the copyright holders being contacted.

    It’s telling that Google, who was already working with publishers through Google Print with an opt-in approach, then bypasssed the publishers and got their hard copies from the libraries, who (not being copyright owners) placed no such burdens. If Google really wants to do this service, they already have the phone numbers of the large and small U.S. and global publishers — and thanks to consolidation in the publishing industry, where most houses we’re familiar with share corporate parents, Google could place all the calls in an afternoon. If it’s the publicity bonanza Google says it is, the publishers will say yes. But they will have been consulted, which is critical.

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

    Actually, I don’t see why publishers couldn’t develop a robots.txt equivalent for books. It’s easy to imagine a small barcode in the title page specifying the author’s preferences for search engine inclusion or exclusion. If Google ignored that, then I think you’d have a much stronger case for a lawsuit.

    Until then, I think it would be a big mistake to shut down promising new technologies on the mere speculation that it might harm copyright holders down the road.

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

    Actually, I don’t see why publishers couldn’t develop a robots.txt equivalent for books. It’s easy to imagine a small barcode in the title page specifying the author’s preferences for search engine inclusion or exclusion. If Google ignored that, then I think you’d have a much stronger case for a lawsuit.

    Until then, I think it would be a big mistake to shut down promising new technologies on the mere speculation that it might harm copyright holders down the road.

  • http://weblog.ipcentral.info Patrick Ross

    Interesting you place the burden on the creator, rather than the company looking to use that creation without paying for it.

    I don’t see why you object to me using your lawn mower. If you’d only invest in a sign on your garage door saying you didn’t want it used you wouldn’t have to worry about me using it. I have the same right to your lawn mower that Google has to those books it didn’t write.

  • http://weblog.ipcentral.info Patrick Ross

    Interesting you place the burden on the creator, rather than the company looking to use that creation without paying for it.

    I don’t see why you object to me using your lawn mower. If you’d only invest in a sign on your garage door saying you didn’t want it used you wouldn’t have to worry about me using it. I have the same right to your lawn mower that Google has to those books it didn’t write.

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

    Tim, nobody is saying that any promising new technology should be shut down because of questionable practices. That sounds like a doomsday scenario to me. If anything, any such technologies, if truly innovative, should be flexible and adaptive to consumer and legal concerns.

    Your idea about putting barcodes on books is interesting, but this won’t affect books already in exisence.

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

    Tim, nobody is saying that any promising new technology should be shut down because of questionable practices. That sounds like a doomsday scenario to me. If anything, any such technologies, if truly innovative, should be flexible and adaptive to consumer and legal concerns.

    Your idea about putting barcodes on books is interesting, but this won’t affect books already in exisence.

  • Doug Lay

    Sheesh, these IP maximalists love to fall back on that old property metaphor, don’t they? The WSJ has Google skinny-dipping in their pool without asking, Patrick has Google using the neighbor’s lawn mower without permission. Really, do we expect these are the kinds of arguments we’ll hear when fair use is debated in court? Of course not. It’s PR talk, designed to elicit an emotional response.

    Next thing you know, these guys will come out with an argument that compares DRM to the electronic wheel-locks on shopping carts.

  • Doug Lay

    Sheesh, these IP maximalists love to fall back on that old property metaphor, don’t they? The WSJ has Google skinny-dipping in their pool without asking, Patrick has Google using the neighbor’s lawn mower without permission. Really, do we expect these are the kinds of arguments we’ll hear when fair use is debated in court? Of course not. It’s PR talk, designed to elicit an emotional response.

    Next thing you know, these guys will come out with an argument that compares DRM to the electronic wheel-locks on shopping carts.

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

    Doug, I’ve stated this many times, but real property is used as an analogy for intellectual property. This is done because intellectual property is not only often abstract in what it covers, but many of the questions are new, and need to be simplified. Granted, there are obvious limitations to comparing real and intellectual property, but they are analogized to clarify points, not to draw emotional responses. Personally, I’ve stopped using such analogies unless necessary to communicate with readers.

    I don’t like to debate over the meaning of intellectual property too much. I’ve seen some good discussion on that issue here on TLF, but they don’t show how misunderstanding of intellectual property distorts current discourse. Further, it does no good to brood over the meaning of intellectual property, and then trip over simple concepts like copyrights posing a barrier to entry, innovating technologies needing to adapt to legal regimes or the role of patents as that contributing to free markets rather than reflecting anarchistic views of perfectly free markets.

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

    Doug, I’ve stated this many times, but real property is used as an analogy for intellectual property. This is done because intellectual property is not only often abstract in what it covers, but many of the questions are new, and need to be simplified. Granted, there are obvious limitations to comparing real and intellectual property, but they are analogized to clarify points, not to draw emotional responses. Personally, I’ve stopped using such analogies unless necessary to communicate with readers.

    I don’t like to debate over the meaning of intellectual property too much. I’ve seen some good discussion on that issue here on TLF, but they don’t show how misunderstanding of intellectual property distorts current discourse. Further, it does no good to brood over the meaning of intellectual property, and then trip over simple concepts like copyrights posing a barrier to entry, innovating technologies needing to adapt to legal regimes or the role of patents as that contributing to free markets rather than reflecting anarchistic views of perfectly free markets.

  • Doug Lay

    Granted, there are obvious limitations to comparing real and intellectual property,

    ya think?

    but they are analogized to clarify points, not to draw emotional responses.

    Patrick is using the analogy to draw an emotional response.

    Personally, I’ve stopped using such analogies unless necessary to communicate with readers.

    Good for you. Maybe you could pop your head down the hall and ask Patrick to do the same.

  • Doug Lay

    >>Granted, there are obvious limitations to comparing real and intellectual property,

    ya think?

    >>but they are analogized to clarify points, not to draw emotional responses.

    Patrick is using the analogy to draw an emotional response.

    >>Personally, I’ve stopped using such analogies unless necessary to communicate with readers.

    Good for you. Maybe you could pop your head down the hall and ask Patrick to do the same.

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

    Well, it looks like the one emotional response Patrick has caused is with you Mr Lay.

    Sheeesh. Why is everybody in such a bad mood. Ahhh…

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

    Well, it looks like the one emotional response Patrick has caused is with you Mr Lay.

    Sheeesh. Why is everybody in such a bad mood. Ahhh…

  • http://weblog.ipcentral.info Patrick Ross

    I wasn’t actually trying to draw an emotional response, but I am amused by the one I ended up drawing.

    I stand by the analogy. Find another example if you must, but both put the burden on the owner of the property to tell another party whether or not that property can be used by the other party. I don’t know if I’m an IP maximalist but I am old-fashioned; I think you should ask before you use someone else’s property. That’s what I teach my kids, anyway.

  • http://weblog.ipcentral.info Patrick Ross

    I wasn’t actually trying to draw an emotional response, but I am amused by the one I ended up drawing.

    I stand by the analogy. Find another example if you must, but both put the burden on the owner of the property to tell another party whether or not that property can be used by the other party. I don’t know if I’m an IP maximalist but I am old-fashioned; I think you should ask before you use someone else’s property. That’s what I teach my kids, anyway.

  • Doug Lay

    Fair use by definition does not require permission. The existence of Fair Use is just one of several factors that makes the metaphor of copyright as property highly problematic. Also, Patrick, Google aren’t your kids. Really, bringing your kids and your mother into a debate is hardly the way to convince anyone you aren’t aiming for emotional impact.

  • Doug Lay

    Fair use by definition does not require permission. The existence of Fair Use is just one of several factors that makes the metaphor of copyright as property highly problematic. Also, Patrick, Google aren’t your kids. Really, bringing your kids and your mother into a debate is hardly the way to convince anyone you aren’t aiming for emotional impact.

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

    I actually appreciate some of Google efforts with its Booksearch project- namely its willingness to engage in discourse on fair use, rather than sidestepping the real legal issues.

    I swear though, Doug, you are in a bad mood.

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

    I actually appreciate some of Google efforts with its Booksearch project- namely its willingness to engage in discourse on fair use, rather than sidestepping the real legal issues.

    I swear though, Doug, you are in a bad mood.

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

    Interesting you place the burden on the creator, rather than the company looking to use that creation without paying for it.

    Patrick the problem is: you only have a legal right to stop infringing uses.

    Google’s use, as Tim demonstrated, only uses small snippets of text, not even an entire page, and therefor would usually be considered FAIR USE.

    Therefore, what you are trying to do, i.e., prevent FAIR USE, is morally and legally wrong.

  • http://enigmafoundry.wordpress.com eee_eff

    Interesting you place the burden on the creator, rather than the company looking to use that creation without paying for it.


    Patrick the problem is: you only have a legal right to stop infringing uses.


    Google’s use, as Tim demonstrated, only uses small snippets of text, not even an entire page, and therefor would usually be considered FAIR USE.


    Therefore, what you are trying to do, i.e., prevent FAIR USE, is morally and legally wrong.

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

    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. No, that’s not true, Patrick. As usual you are display your ignorance of the Constitution which places no affirmative duty of Congress to enact copyright laws, but grants them the power, at their discretion to do so. If such an entirely unreasonable interpretation which would make what Google does illegal, it is through the action of the free press (including blogs) to right that wrong by pressuring legislators to re-write the law. That is the duty of the free press. Why is everyone at the Progress and Freedom Foundation against the action of the free press? The answer is quite simple: you are all fascists.

  • http://enigmafoundry.wordpress.com eee_eff


    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.

    No, that’s not true, Patrick. As usual you are display your ignorance of the Constitution which places no affirmative duty of Congress to enact copyright laws, but grants them the power, at their discretion to do so.

    If such an entirely unreasonable interpretation which would make what Google does illegal, it is through the action of the free press (including blogs) to right that wrong by pressuring legislators to re-write the law. That is the duty of the free press.

    Why is everyone at the Progress and Freedom Foundation against the action of the free press?

    The answer is quite simple: you are all fascists.

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

    My dear Mr E, I recommend to you the writings of Thomas Jefferson, our third president and first patent administrator. His works shall demonstrate to you the importance of property rights in a democracy.

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

    My dear Mr E, I recommend to you the writings of Thomas Jefferson, our third president and first patent administrator. His works shall demonstrate to you the importance of property rights in a democracy.

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

    Enigma, I appreciate your support, but I really don’t think Patrick’s support for the publishers in this case proves that everyone at PFF is a fascist. And it’s particularly silly to accuse them of being against the free press when PFF scholar (and my co-blogger) Adam Theirer spends most of his time criticizing government censorship.

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

    Enigma, I appreciate your support, but I really don’t think Patrick’s support for the publishers in this case proves that everyone at PFF is a fascist. And it’s particularly silly to accuse them of being against the free press when PFF scholar (and my co-blogger) Adam Theirer spends most of his time criticizing government censorship.

  • http://www.blogger.com/profile/14019452 Steve R.

    Noel: This is NOT about the “importance of property rights” but about those creating content aggrandizing what they believe they own through depriving the user of fair use. For example, you own a Ford automobile. The Ford fuel pump goes bad and by an amazing coincidence a Chevy fuel pump happens to work. Given the current trend in unjustifiable property rights expansion, Ford could claim that use the Chevy fuel pump, is violation of Ford’s property rights.

    Along these line, Jason Mazzone wrote in “Copyfraud”:“These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.”

    Patrick: “But fair use is best decided in court” makes a good sound bite, but unfortunately would not be the correct solution. The role of the courts is to interpret the law, not make law. The passage of the “Sonny Bono Copyright Term Extension Act” was a bad law. Nevertheless it was the law and the US Supreme Court upheld this ridiculous law in “Eldred v. Ashcroft”. The solution is to change the law. Blogs provide a forum that could create enough public support to change the law.

    Patrick, I don’t mean this in a personal sense, but I get a kick out of the content ownership crowd with the statement “I don’t know if I’m an IP maximalist but I am old-fashioned; I think you should ask before you use someone else’s property” The content ownership crowd routinely assumes that I don’t have any rights to ownership!!!! I have serious problems with the content owership crowd claiming the moral/ethical high ground when they routinely violate it.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Noel: This is NOT about the “importance of property rights” but about those creating content aggrandizing what they believe they own through depriving the user of fair use. For example, you own a Ford automobile. The Ford fuel pump goes bad and by an amazing coincidence a Chevy fuel pump happens to work. Given the current trend in unjustifiable property rights expansion, Ford could claim that use the Chevy fuel pump, is violation of Ford’s property rights.

    Along these line, Jason Mazzone wrote in “Copyfraud”:“These false copyright claims, which are often
    accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.”

    Patrick: “But fair use is best decided in court” makes a good sound bite, but unfortunately would not be the correct solution. The role of the courts is to interpret the law, not make law. The passage of the “Sonny Bono Copyright Term Extension Act” was a bad law. Nevertheless it was the law and the US Supreme Court upheld this ridiculous law in “Eldred v. Ashcroft”. The solution is to change the law. Blogs provide a forum that could create enough public support to change the law.

    Patrick, I don’t mean this in a personal sense, but I get a kick out of the content ownership crowd with the statement “I don’t know if I’m an IP maximalist but I am old-fashioned; I think you should ask before you use someone else’s property” The content ownership crowd routinely assumes that I don’t have any rights to ownership!!!! I have serious problems with the content owership crowd claiming the moral/ethical high ground when they routinely violate it.

  • http://weblog.ipcentral.info Patrick Ross

    Tim, thanks for the defense, even if it was for PFF and not for me personally. (It kinda sounds like, “Well, just because Patrick is a fascist doesn’t mean my friend Adam, the TLF founder, is one!”) I’ve recalled why I don’t comment at this site, it is a place for personal attacks, not commentary, unless of course you agree with the groupthink, in which case it’s a lovefest.

    I will respond to the comments addressed to me above and then withdraw from this post and frankly, once again, from TLF.

    To Doug, my mother was introduced by this discussion because she is the best-selling author of 95 novels; through her I developed an appreciation for creation and copyright, and learned a bit about the publishing industry, probably more than anyone blogging here (I don’t claim to know near as much as most here about the software industry). So no individual is more relevant to me in this debate. As for my kids, I apologize if I see a moral thread here; I’ll admit I am nearly alone in the US in seeing a moral rights role in copyright and I was making a moral point. If you don’t like my intellectual arguments on copyright, fine, but I would prefer you not question my right to hold moral beliefs.

    To Doug and enigma, you fail to understand that I do not feel copying an entire book is fair use, regardless of final intent, thus I think the copyright holder must be contacted. I said that in my first post. If a court finds otherwise than Google, or me, or Tim, or anybody can copy an entire book and release snippets because then it is fair use. Merely declaring something is fair use doesn’t make it so under the law.

    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. Does Google pass the four prong test? A court will decide that, as other fair use cases have been decided. You might want to read Tim’s paper attacking the DMCA; in it he argues that courts are the best place to resolve such matters.

    As for the free press, I’m not sure what this case has to do with a free press, unless you think works from a “press” such as a book should be “free” to Google to do with what it wishes. I spent well past a decade as an investigative journalist and won nine awards examining government corruption, campaign finance spending and lobbying. In fact, one thing I learned as a reporter is to know a little bit about someone before drawing a conclusion. (I don’t wish to bore TLF readers more with my journalism career, if you wish to know more contact me separately.)

    Noel is younger than me and seems to revel more in the vitriol found at this site. I leave it to him to defend IP here; I confess I don’t have the stomach for the tone. Any time anyone wishes to discuss copyright with me in a civil manner outside of TLF I will be happy to do so.

  • http://weblog.ipcentral.info Patrick Ross

    Tim, thanks for the defense, even if it was for PFF and not for me personally. (It kinda sounds like, “Well, just because Patrick is a fascist doesn’t mean my friend Adam, the TLF founder, is one!”) I’ve recalled why I don’t comment at this site, it is a place for personal attacks, not commentary, unless of course you agree with the groupthink, in which case it’s a lovefest.

    I will respond to the comments addressed to me above and then withdraw from this post and frankly, once again, from TLF.

    To Doug, my mother was introduced by this discussion because she is the best-selling author of 95 novels; through her I developed an appreciation for creation and copyright, and learned a bit about the publishing industry, probably more than anyone blogging here (I don’t claim to know near as much as most here about the software industry). So no individual is more relevant to me in this debate. As for my kids, I apologize if I see a moral thread here; I’ll admit I am nearly alone in the US in seeing a moral rights role in copyright and I was making a moral point. If you don’t like my intellectual arguments on copyright, fine, but I would prefer you not question my right to hold moral beliefs.

    To Doug and enigma, you fail to understand that I do not feel copying an entire book is fair use, regardless of final intent, thus I think the copyright holder must be contacted. I said that in my first post. If a court finds otherwise than Google, or me, or Tim, or anybody can copy an entire book and release snippets because then it is fair use. Merely declaring something is fair use doesn’t make it so under the law.

    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. Does Google pass the four prong test? A court will decide that, as other fair use cases have been decided. You might want to read Tim’s paper attacking the DMCA; in it he argues that courts are the best place to resolve such matters.

    As for the free press, I’m not sure what this case has to do with a free press, unless you think works from a “press” such as a book should be “free” to Google to do with what it wishes. I spent well past a decade as an investigative journalist and won nine awards examining government corruption, campaign finance spending and lobbying. In fact, one thing I learned as a reporter is to know a little bit about someone before drawing a conclusion. (I don’t wish to bore TLF readers more with my journalism career, if you wish to know more contact me separately.)

    Noel is younger than me and seems to revel more in the vitriol found at this site. I leave it to him to defend IP here; I confess I don’t have the stomach for the tone. Any time anyone wishes to discuss copyright with me in a civil manner outside of TLF I will be happy to do so.

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

    Tim, thanks for the defense, even if it was for PFF and not for me personally. (It kinda sounds like, “Well, just because Patrick is a fascist doesn’t mean my friend Adam, the TLF founder, is one!”)

    That’s not what I meant. Just to be clear, I don’t think that you or anyone else at PFF is a fascist, and I apologize for giving the impression that I did. And I hope our commenters will heed your call for greater civility.

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

    Tim, thanks for the defense, even if it was for PFF and not for me personally. (It kinda sounds like, “Well, just because Patrick is a fascist doesn’t mean my friend Adam, the TLF founder, is one!”)

    That’s not what I meant. Just to be clear, I don’t think that you or anyone else at PFF is a fascist, and I apologize for giving the impression that I did. And I hope our commenters will heed your call for greater civility.

  • Doug Lay

    Patrick, I don’t think you’re a fascist (Noel I’m not so sure about sometimes) and I definitely believe your views on copyright as property are heartfelt. The key word, though, is “heartfelt” as in “from the heart, not the head.” I absolutely cannot deny you your moral beliefs but you better believe you just as surely don’t have the right to impose them on me. Morality is personal and emotional and not something you can legislate, thanks very much. Your view of copyright as property may be suitable for a moral lecture to a 10-year-old, but in the context of policy debate it’s simplistic at best and just plain wrong at worst. Copying a whole book is never fair use? Well, the Supreme Court has ruled copying an entire television program can be fair use – can you tell me the difference without huffing about morality? Oh, BTW, fair use does not stem from the Sony decision – it was codified in the 1976 Copyright Act, only eight years or so before Sony. But who needs accuracy when God is on your side, right?

    One last word about vitriol. Like it or not, it is often effective.

  • Doug Lay

    Patrick, I don’t think you’re a fascist (Noel I’m not so sure about sometimes) and I definitely believe your views on copyright as property are heartfelt. The key word, though, is “heartfelt” as in “from the heart, not the head.” I absolutely cannot deny you your moral beliefs but you better believe you just as surely don’t have the right to impose them on me. Morality is personal and emotional and not something you can legislate, thanks very much. Your view of copyright as property may be suitable for a moral lecture to a 10-year-old, but in the context of policy debate it’s simplistic at best and just plain wrong at worst. Copying a whole book is never fair use? Well, the Supreme Court has ruled copying an entire television program can be fair use – can you tell me the difference without huffing about morality? Oh, BTW, fair use does not stem from the Sony decision – it was codified in the 1976 Copyright Act, only eight years or so before Sony. But who needs accuracy when God is on your side, right?

    One last word about vitriol. Like it or not, it is often effective.

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

    Fair use is decided by the courts, although reading TLF you’d think that bloggers decide fair use, as well as obvious patents, DMCA anticircumvention, and a lot of other things. Interestingly, fair use, patents and the DMCA are all constructs that Congress seems to have given the courts more discretion in interpretation than other aspects of regulatory policy.

    Doug, Patrick does not take a moral position on copyright, but more of a natural rights view. Nothing wrong with this, as Tim Lee takes a natural rights position on copyrights (but does not admit it). And where did Patrick say Google was not engaging in fair use?

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

    Fair use is decided by the courts, although reading TLF you’d think that bloggers decide fair use, as well as obvious patents, DMCA anticircumvention, and a lot of other things. Interestingly, fair use, patents and the DMCA are all constructs that Congress seems to have given the courts more discretion in interpretation than other aspects of regulatory policy.

    Doug, Patrick does not take a moral position on copyright, but more of a natural rights view. Nothing wrong with this, as Tim Lee takes a natural rights position on copyrights (but does not admit it). And where did Patrick say Google was not engaging in fair use?

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

    Tim Lee takes a natural rights position on copyrights (but does not admit it).

    I don’t remember ever having written about this subject, so I’m glad you cleared that up for us. Your mind-reading capabilities are astounding.

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

    Tim Lee takes a natural rights position on copyrights (but does not admit it).

    I don’t remember ever having written about this subject, so I’m glad you cleared that up for us. Your mind-reading capabilities are astounding.

  • Doug Lay

    And where did Patrick say Google was not engaging in fair use?

    Is that a trick question?

  • Doug Lay

    >>And where did Patrick say Google was not engaging in fair use?

    Is that a trick question?

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

    Tim, if you understood what you write, then you might find that you take a natural rights approach to IP. Note that often when we disagree, you never explain your argument more fully, but rather, you say that you were just exaggerating. If you were guided by utilitarian, or even economic considerations to begin with, this would occur less often. You compensate for your natural rights/quasi-moral views somewhat by trying to communicate that you’re guided by logic (note how often you say things like “logical fallacy” or “misguided reasoning” or “clear thinking”) but your arguments hardly display such qualities. You don’t care about innovation, the industry, consumers, economic growth or anything; all you have is some extremist left-wing Libertarien ideal for which you’d take apart all that that IP has done for society. Look at your arguments on the DMCA; I’ve pointed out to you how the case law does not support your Cato paper, yet you won’t even address my points because that would cause you to read and understand case law rather intrepret how they affect some extremist Libertarien views. Look at software patents; you want to eliminate them just so hackers have more freedom to tinker- eliminating a class of patents is very extreme, but you won’t even consider reform measures.

    Doug, Patrick is saying that although he differs with others on whether GOogle’s actions constitute fair use, the courts will have the final say. Patrick is not arguing that Google Book Search falls outside fair use, he’s saying he has a hard time seeing how it might. (here, Patrick and I differ, I think Google may prevail)

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

    Tim, if you understood what you write, then you might find that you take a natural rights approach to IP. Note that often when we disagree, you never explain your argument more fully, but rather, you say that you were just exaggerating. If you were guided by utilitarian, or even economic considerations to begin with, this would occur less often. You compensate for your natural rights/quasi-moral views somewhat by trying to communicate that you’re guided by logic (note how often you say things like “logical fallacy” or “misguided reasoning” or “clear thinking”) but your arguments hardly display such qualities. You don’t care about innovation, the industry, consumers, economic growth or anything; all you have is some extremist left-wing Libertarien ideal for which you’d take apart all that that IP has done for society. Look at your arguments on the DMCA; I’ve pointed out to you how the case law does not support your Cato paper, yet you won’t even address my points because that would cause you to read and understand case law rather intrepret how they affect some extremist Libertarien views. Look at software patents; you want to eliminate them just so hackers have more freedom to tinker- eliminating a class of patents is very extreme, but you won’t even consider reform measures.

    Doug, Patrick is saying that although he differs with others on whether GOogle’s actions constitute fair use, the courts will have the final say. Patrick is not arguing that Google Book Search falls outside fair use, he’s saying he has a hard time seeing how it might. (here, Patrick and I differ, I think Google may prevail)

  • 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/ 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

    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

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

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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?
    fuck, donno what to do…need your advices….

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