The Journal Fails to Do Its Homework

by on December 1, 2006 · 24 comments

Neat! The Wall Street Journal appears to have cited my DMCA paper in today’s editorial. (It’s behind a paywall, unfortunately) Unfortunately, although I always appreciate seeing my work cited, it doesn’t look like they read read it very carefully:

A recent Cato Institute paper argues that “transformative” technologies like search engines should be exempt from many of these copyright lawsuits because they create entirely new products out of the old. They argue that the role of “copyright law is to promote, not impede technological progress.” That’s true. But without rigorous enforcement of intellectual-property rights, there may not be much technological progress to promote.

This wasn’t really the point of my paper, nor is it just my opinion. Rather, I was quoting the decisions of the Supreme Court, which ruled in 1994 that “transformative” uses of copyrighted works tend to be fair, and the Ninth Circuit, which ruled that thumbnails used in image search engines are such a transformative use. And I wasn’t talking about the YouTube or Google Book Search controversies, which involve different issues than the reverse-engineering cases I was focusing on in my paper.

As I’ll explain below the fold, the rest of the editorial makes the same kinds of mistakes.

The fundamental problem with the editorial is that it treats all of Google’s properties–YouTube, Book Search, Image Search, etc–as if they present a black-and-white issue of whether we should have “rigorous enforcement of intellectual-property rights.” This leads the Journal to write things like this:

Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material.

If the DMCA has a thumbnail safe harbor, that’s news to me! Most likely, they’re confusing the DMCA’s “notice and takedown” safe harbor, which relates to user-uploaded content, with the Kelly v. Arriba Soft decision, which held that thumbnails in image search engines are fair use. The former is mostly relevant to YouTube. The latter is relevant to Google image and book searches. I don’t see any way in which the two are related.

The next sentence is equally confused:

The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have a legal right to hop over your neighbor’s fence and swim in their pool–unless they complain.

It’s not clear if this is referring to Book Search or YouTube. If this referring to the Book Search dispute, this is exceedingly misleading. Google is not “reproducing and distributing” books. Rather, it’s distributing snippets–a few lines of text that gives the user context for his or her search term. Snippets exactly like the blockquotes I’m using in this blog post, or the snippets of text that Google’s search engine for the web.

On the other hand, if this is referring to YouTube, the editorial is just wrong on the law. The DMCA’s safe harbor provision clearly does give an ISP the right to host infringing content uploaded by its users, as long as it responds promptly to take-down notices. If the Journal doesn’t like this provision of the law, it’s welcome to write editorials calling for revising it (if they do so, I’d like to talk to them about revising section 1201 as well) but they shouldn’t complain that Google is making use of that provision.

These are questions that can’t easily be answered by all-or-nothing value judgments. Clearly, it would be wrong to say that Google has an unlimited right to do as it pleases with copyrighted materials. (Google, incidentally, has never said anything of the sort) But it’s equally wrong to take the position that the Journal appears to be taking–that no one should be allowed to do anything with copyrighted materials without getting permission first. That’s not how copyright works, and it never has been.

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