Sohn on Fair Use in the Journal

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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