Publishers have sued to stop Google Print, a search engine for books, on the theory that it’s an infringement of copyright to make digital copies of copyrighted books, even if they never show those copies in their entirety to anyone.

The publishers’ position is anti-innovation in a very fundamental way. In the analog world, there’s a clear distinction between “using” a copyrighted work (say, reading a book) and “copying” it (say, using a photocopier). Copyright law says that you’re allowed to use a book you legally own, but generally speaking, you can’t make copies, at least not in a commercial product.

But the “physics” of the digital world are different. Every “use” of content involves the creation of a copy of that data. When you read this web page, dozens of copies of the document were created as it was passed across the Internet. If making a digital copy is a copyright infringement, that means that no one can use their copyrighted content on digital systems without the explicit permission of the copyright owner.

Fortunately, that’s not how the courts have ruled in the past. In 1984, the Supreme Court held that it was a fair use to make personal copies of TV shows for the purpose of “time shifting.” In the 1999 Diamond decision, the Ninth Circuit held that “space shifting”–making copies of music for listening on an MP3 player is a fair use. And in 2002, the Ninth Circuit held that displaying thumbnails of copyrighted images is a fair use. In each case, the court appreciated that new technological realities made the copying involved in these uses fundamentally different than the copying prohibited by traditional copyright law.

Unfortunately, judges have not always been so clear-sighted. In the 2000 MP3.com case, a stubbornly literalist district judge held that storing copies of CDs on MP3.com’s servers for future transmission to customers (all of whom had shown they were legal owners of the CDs) was not a fair use. Unfortunately, that case was settled before it could be appealed.

The courts need to clearly say that the mere act of making a digital copy is not a violation of copyright. What matters is how those copies are used. Fortunately, I think the folks at Google understand what’s at stake, and they know that the future of their business may depend on this issue. They are in the business of organizing the world’s information, most of which is owned by other people. If they have to get permission from each individual copyright holder, many of the innovative things they’d like to do with that information will become logistically impossible. So I’m crossing my fingers and hoping that Larry and Sergei fight this thing all the way to the Supreme Court.

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