|Google has their own interpretation of "fair use" |
I think Scarecrow cuts to the heart of the matter here. Google statements about we're just showing a few lines snippet underscores the point.
However, just because Google only shows a snippet to any given user, I do not know if that allows them to maintain a full copy in their repository.
I think this whole snippet as fair use argument breaks down even further for many of their other products.
For example, their define feature uses snippets to replace the orginal content.
Features like news, restaurants, and movies use aggregated snippets from various sources to completely replace the original content. I don't know if there has ever been a case along the lines that is is ok to use a quote from content in isolation but not in conjunction with other quotes, but Google seems to be pushing this limit.
|Google statements about we're just showing a few lines snippet underscores the point. |
At the risk of taking this off on a tangent here ...
( BTW ...Janet ..I always thought it was Janet and not Jane ...thanks for putting some salsa back on these boards ..it was getting kinda to "PC" and cosy of late ...luv a good iconoclast ...specially a literate one ...go girl go! )..
The "snippets are not enough to consitite copyright infringement" argument has been used many many times in the past ..by google and others here ...
Apparently though what is important is the actual content of the snippet and not it's size proportional to the full work ...from which the quote comes ...
(start relevant digression here ) ..concerning copyright and small snippets .."the use of"
Sony , Time Warner , Buena Vista etc all use various protection systems to attempt to stop copying of DVD's ..most DVD copying software uses a tiny piece of stuff "dissasembled" from within their "protection" ( its about 2 lines of code from around 2 and a half million lines as implemented in the simplest "protections" ...along with macr vision and some other "enhancements actually placed to make copying DVDs difficult this total code figure can get as high as 12 million lines ...
...This is not a "how to" nor an "incitement to"..so thats a very hazy description ..deliberately ..
..I'm Bretts guest here ..his "rug and all" ...
Sony et al have apparently had no difficulties at all in forcing the shutdown of websites which posted or published these two lines ( after reading which one was then free to use or not use these lines to "rip" or not "rip" DVD's depending on ones abilities as a coder - decoder or ones veiwpoint as to the legality of such endeavours etc ) ...The point being Sony et al have been extremely sucessfull in removing all ( or nearly all ) references to these two lines from the internet ..or their repetition ..or even sites which link to sites which display said "code" ..Their argument has been ( and this argument apparently has been accepted in virtually all juristictions upto now except perhaps that of the PRC ) that the publication of the code may invite incite or render possible the subsequent copying of materials ( DVD's ° which are copyright ...In cases where the courts have been tempted to say that "what the end user/viewer may or may not be tempetd do with the code posted" cannot be considered to be sufficient grounds for interdiction of the display or dissemination of the "code snippets"....Sony et al have then argued ( successfully ) that the code "snippets" are part of their larger copyright code work and as such cannot be used or reproduced without their permission ...
They also mention their lawyers and a damages suit of 250 million US$...in connection with the phrase "if this happens again" ...
Not withstanding certain cases still pending ..it would appear that "snippets" of whatever length cannot be used ..shewn ..etc without the owner of the copyrights permission is the legal judgement in virtually every country ...at least when the "snippets" belong to Sony et al ..
So all you webmasters and authors etc ..how about your "snippets"...
As yet Sony et al have n't officially taken on G for caching pages with the snippets or for indexing and thus linking to those pages ..they have however closed a lot of sites ..and sued the pants off of a lot of site owners and coders ...
This isn't an incitement against Sony ..they figured their arcos systems were under threat ..they were ..they are not to tightly wrapped even now ...and any self respecting geek has a tee shirt with the old code printed on it any way ..all about not using style sheets and stuff ...
(end relevant digression )
Whilst agreeing with ...Janet...? and her comments concerning ... potentially webmasters cutting off their noses to spite their faces ( and being a great beleiver in enlightened self interest ) ..I don't thnk that any of the big 3 is going to go any further down the road of Pay for Inclusion than y has upto now ...Most of the public around the world get their news from the TV and or Newspapers ( we are geeky and thus think otherwise ...most of the non geek world thinks that the internet is for ebay and pron..and for homework ...don't beleive me? ..look at your friends or neighbours Index.dat files when you are asked if you can fix whatevr they have in their flavour of Doze that's not working like it should ; ) and if they were told that the serps of anyone were being filtered due to such they would cease to trust it at all and go elsewhere ...
Just because they "average surfer" are fickle and their attention span is so short things will again change ..just takes awhile for them to wake up ...but they don't like to have it "in their faces" that they've been "had" or to be told that the game is/was /will be rigged ....
Even if this game should be the least of their worries ..( pigs and singing ) ...
G's PR is a mess at the moment ..but for now there's only us geeks watching so they don't care too much ( "do no evil" was only ever for the geek gallery ) ..and it was as some of us said way before the IPO , just a matter of time before some folks realised that ...
Anyone remember Altavista..and they werent caught doing anything worse than having easily spammable serps
Oh yeah ..and BTW ..too all those people who are unhappy with the "toolbar" from G or anyone else ....do you still use G's site search...
Did you really beleive when you installed it or tha toolbar from G or 'lexa or whomever that it was for your good ....( and do you really think that it was ever designed to be ) ...yes ....?
Please send the checks or better yet cash for improve your web experience to me care of .........
..nice thread ..takes me back ..G and copyright .mmmmmm....the old bones taste the best...
Interesting interpretation of decss and snippets.
But it is not a "snippet" that is at issue in that case. In fact, it isn't even copyright infringement of those lines that the cases were about. Those cases are about breaking copy protection, a different part of copyright law.
And even if they were about s specific set of lines that wedre selected as the "heart" of CSS, and it was copyright infringement, that does not cause those rulings to be precident for random SE snippets.
Anyway, even the publishers in this case are not arguing against the rights to provide snippets. They know they aren't going to win there. They are arguing against google making complete copies to use in their indexing.
|Anyway, even the publishers in this case are not arguing against the rights to provide snippets. They know they aren't going to win there. They are arguing against google making complete copies to use in their indexing. |
That's the whole crux of the matter. These are two sides of the same coin - Google can only supply an on-demand snippet from anywhere in the book by having a whole derivitive copy of the book.
IMHO that makes the snippet more than just a small isolated quote that can be gotten away with fair-use - it becomes a replacement for the original work. In a sense that little snippet is derivitive copy of the book with all of the unwanted junk removed.
For example, I want to know the Zagats rating for Le Cheval. I type in zagats rating le cheval and get a snippet with the rating and couple line description. Gosh, I nolonger need to buy Zagats or subscribe to their website.
|IMHO that makes the snippet more than just a small isolated quote that can be gotten away with fair-use - it becomes a replacement for the original work. In a sense that little snippet is derivitive copy of the book with all of the unwanted junk removed. |
The courts will not make that connection, and they are the ones that matter.
|For example, I want to know the Zagats rating for Le Cheval. I type in zagats rating le cheval and get a snippet with the rating and couple line description. Gosh, I nolonger need to buy Zagats or subscribe to their website. |
Well, that doesn't get you anywere either, as far as copyright is concerned, because the actual rating is not copyrighted, only the expression of the rating.
I could write an article where I mention that "I disagree with Zagats rating of Le Cheval..." and I mention their rating. That is not copyright infringement just because it keeps them from selling a subscription.
|just because it keeps them from selling a subscription |
Whoah, the degree to which the use competes with the original is one of the fundamental points for determining "fair use."
|Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. |
This why I think that Google's use of snippets for their Define feature is not legitimate fair use.
I also think their aggregating features (news, movies, restaurants, etc.) that the snippet from one site doesn't really undermine any site, but the total of all the snippets undermine all of the sites. I bet their will be an interesting legal case on this in the future.
|Whoah, the degree to which the use competes with the original is one of the fundamental points for determining "fair use." |
Yes, one of the 4 points. But you might want to read the caselaw to see how it is actually applied. Give Kelly v. Arriba a try. I'll give you more references if you like.
|This why I think that Google's use of snippets for their Define feature is not legitimate fair use. |
The define feature does not return snippets in the same sense as the regular SERPs. In fact, they almost certainly work in a totally different way than the regular SERPs and do not require maintaining a complete copy of the work. So they certainly do not represent a comparable position to the case under discussion.
|I also think their aggregating features (news, movies, restaurants, etc.) that the snippet from one site doesn't really undermine any site, but the total of all the snippets undermine all of the sites. |
Uh, How does that add up to copyright infringement if no individual work is infringed? How would you even file a case like that?
|In fact, it isn't even copyright infringement of those lines that the cases were about. |
In France this was indeed the line that they took ..that their copyright on their code was being infringed by the publication of their decss string ..they used this just after the French courts pointed out that in French law "providing that you owned the original DVD you had the right to make a back up for your self " so their first line of argument was invalid ..and thrown out...
Their second line of attack was against use of the code as a "snippet" on a site claiming fair use etc to discuss the issue was upheld however by the court ..and sites shut etc..a similar ruling was applied in the UK ...
These are "facts" as opposed to interpretations on law or applications of the decisions in one juristiction to another in order to bolster ones supposed expertise on the subject ..we two 've already done this dance tho ...sterile excercise and I have a life to lead away from "copyright experts"...
BTW .. ( we actually pay a tax here on all blank media that assumes that we will use it to back up in this way )..hence the first ruling ...I may or may not agree with it ..but it is the law "here" ...presumably on an international forum all countries laws can be considered worthy of recognition ...
Sorry the decisons were not rendered in English ..before you ask me to "prove them with a link"...and G translates like I ride a monocycle drunk ;)
The point is ...there are already decisions in some countries which go against the google approach to snippets , fair use etc ..and g now has real estate in some of those places ..and can be maybe bent to their laws ....Redmond had to "unbundle" after such moves were started here and followed up elsewhere ...
If Google annoy something as big as "Hachette" ( who also publish and distribute in titles in English like many others ) for example ..this could go the same way ....
France is rather good at pushing for community wide application of "cultural product" laws...
And yes I do remember that the shouts came from here about not being included in the indexing at the beginning ..no one ever said that anyone in Govt here was consistent ..if taking a stand was good for votes ..in a heartbeat ..
[edited by: Leosghost at 1:45 am (utc) on Aug. 17, 2005]
BigDave I know you have to have the last word, so I'll start winding down and just address one of your points.
How does Kelly v. Arriba fit the current discussion.
I don't know caselaw as well as you, but I did a quick search (on Google :)) and came to
In Kelly v. Arriba, it says the court cited "lack of market harm" and the fact that the photos were transformed (shrunk) so they did not really compete with the original.
In the current discussion, I think myself and many other people feel Google Print will compete with the original in many cases (not all, not even the majority).
The case cited in the previous Standford link - Rogers v. Koons seems more on target - but I'm no expert.
It appears that an unfortunate number of posters here haven't even bothered looking at a standard copyright notice, here's one:
"All rights reserved. No part of this book may be reproduced, STORED IN A RETRIEVAL SYSTEM or transmitted in any form or by any means, without the PRIOR WRITTEN PERMISSION OF THE PUBLISHER, except in the case of brief quotations embodied in critical articles or reviews."
Since what google is doing is precisely what this copyright notice explicitly denies the right to, I'm not exactly clear on what fantasy world the guys in the googleplex are living in, or certain posters who seem to be unable to see the forest for the trees. This fantasy world is however clearly not connected with the united states, but maybe they're getting good drugs as a fringe benefit? I'd hope that's the reason, otherwise it's just plain old big corporate arrogance.
What google is doing is most definitely not providing a brief quotation etc, it's reproducing, storing in a retrieval system, transmitting by any means. The courts will have exactly zero problems with this one.
[edited by: 2by4 at 2:40 am (utc) on Aug. 17, 2005]
>> standard copyright notice,
maybe because that means nothing, unless it's supported by the law. Just because you put it there, doesn't mean much.
Walkman, that's a legal notice, straight out of a book. I'm going to go out on a far reaching limb here and guess that publishers like the one I took that one from know more about copyright than you, me, or bigdave. It's what they do for a living.
it still doesn't mean ANYTHING until you go in court and it's upheld. EVERY word can be twisted and fought over. Look at AP's or Reuters' disclaimer, yet many sites--all within their fair use rights--have entire paragraphs from their stories and comment on them. IMO, they use it to scare people mostly.
I hope this itself isn't copyrighted ;):
"Copyright 2005 The Associated Press. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed."
Define "material" for me...
Having entire paragraphs from a story comes in that gray area of fair use etc, allowing snippets etc. What google is doing does not occupy such a gray area, they are creating a copy of an entire work then using it for commercial purposes, this is an absolute no brainer, and they will lose in court. Don't be fooled by Google's size, they have been losing these types of cases routinely, just lost the adwords one for example, which involves a much milder form of trademark, in this case, infringement, one I would have thought would be more in the gray area than the courts deemed it.
Make absolutely no mistake about it, Google will lose this case, and be subject to very large fines, and should immediately fire their legal team. This is not a gray area. They are explicitly violating copyright laws if they continue, and any legal advisor who told them otherwise is an a**kissing idiot.
However, I'll define 'material' for you: it means that the person or entity that you are suing has enough money to make it worth your while to proceed. Google has enough money to make it worth their while, the sites you are referring to probably don't, or don't do it enough to bother with.
If this isn't adequately clear, I'll give an example: I'm going to go to my local library and make copies of all their cds. Forget what I'll do with them, that's irrelevant. I'm just going to copy them. Then I'll publicize this fact in the national media. There is no difference in any way legally between what google is suggesting re copyrighted works and this.
I think G will lose too. With comments though, it's different. One can use your copyright work to agree or disagree with it. If Wash Post has an editorial supporting, let's say the war in Iraq, you can cut and paste their op-ed and dispute it point by point. Freedom of speech kicks in, and not all free speech is equal (political is more important).
Selling ads is not that important for the survival of the nation ;). Also the court will look differently if you have a TOTALLY non-commercial site or a commercial one. One right wing site (starts with Free...) tried that excuse (no ads), but they accept $250K a year in donations. I know many sites that cut and paste entire articles and no one (newspapers) bothers them because it's totally altruistic; no one is making money.
Exactly, that's the point walkman. If there's one thing that motivates lawyers, it's money. Google has made a very big mistake, the kind that only sheltered programmers living in their own little googleplex could have made. The sheer idiocy of this is almost mind boggling, except that it's exactly the type of thing I expected from them post IPO.
I have to add one correction to what I said re copying all the libary's cds, there is one difference, I wouldn't be an 80 billion dollar corporation, so I might get off with a slap on the wrist, or they might ignore me, but probably not if I insisted on continuing to broadcast and challenge in court my right to do so, that would definitely get a rise out of the cd copyright holders. Just look at the kids prosecuted for filesharing, which is in essence just providing a snippet of a copyrighted work, or hip hop, which uses samples, definitely snippets, that was cracked down on, now they have to get copyright holder permission for any sample over I believe 15 seconds... Google guys, you need to get a dose of common sense or it's going to get slapped into you.
|presumably on an international forum all countries laws can be considered worthy of recognition |
If that is what the discussion is about, but it is not. It is about the American Association of Univeristy Publishers, the American Association of Publishers, American libraries and an American corporation about copying that is happening in America where the lawsuit will be filed in United States District Court.
Yes, it might lead to cases elsewhere, but that ain't happening yet, so get over it.
|In Kelly v. Arriba, it says the court cited "lack of market harm" and the fact that the photos were transformed (shrunk) so they did not really compete with the original. |
In the current discussion, I think myself and many other people feel Google Print will compete with the original in many cases (not all, not even the majority).
Well, Kelly certainly was of the position that there was harm, even with the transformed images, but he wasn't able to show any. That is the trick, you have to show that they have harmed your market. That is not as easy as it might seem.
But that is still only one part of a Fair Use determination. You will notice in Arriba, that there were two factos in favor of Fair Use and two against, yet they came down in favor of Fair Use.
|It appears that an unfortunate number of posters here haven't even bothered looking at a standard copyright notice |
Sorry, but walkman is right on this one.
Copyright notices have absolutely no legal ability to add extra restrictions over those granted by law. If the use is Fair Use, you have no right to restrict that use.
|Walkman, that's a legal notice, straight out of a book. I'm going to go out on a far reaching limb here and guess that publishers like the one I took that one from know more about copyright than you, me, or bigdave. It's what they do for a living. |
No, it is not legal notice, it is a statement of no legal value, It is just a warning.
As for publisher knowing copyright law, of course some of them do. But they would also know that that statement would not have any ability to stop anyone from using their Fair Use rights.
Publishers were the ones that tried to put limitations on their books (and videos) limiting the rights of others to sell them for less than the list price, to loan them out, or to sell them on the used market. Guess what the courts thought of those "legal notices"?
|What google is doing does not occupy such a gray area, they are creating a copy of an entire work then using it for commercial purposes, this is an absolute no brainer, and they will lose in court. |
While I think there is a definite possibility that they might lose, it is far from a no-brainer. There are actually many legal uses of works that allow making complete copies, and they are working as an agent of establishments that have some pretty extreme rights in these cases.
The IP lawyers that I know don't seem anywhere near as convinced as you are. I would say that they are leaning towards Google losing outright, or having to change their behavior on this one, but I don't think any of them would be totally suprised of Google won outright either.
|Don't be fooled by Google's size, they have been losing these types of cases routinely, just lost the adwords one for example, which involves a much milder form of trademark, in this case, infringement, one I would have thought would be more in the gray area than the courts deemed it. |
The GEICO case? Do you realize that the supposed Google loss was actually a ruling that partially dismissed GEICO's claims? It was not, as was generally reported, Google losing the case. The case has not even gone to trial yet, and it has yet to be determined whether Google or the advertisers are responsible.
Google can still sell "GEICO" as a keyword.
The problem is that there were companies using "GEICO" in their text in a way that violates trademark law. Google's supposed "loss" was that those claims did not disappear with the rest of them.
The GEICO case really is a slam dunk against someone, in some cases, and some of that money is likely to come from Google. But unless you have seen an actual copyright case in action, you best not assume that it is easy, or even what the outcome is.
As for copying all the CDs in the library, you might be surprised by the legalities involved. It may not be quite a easy to prosecute you as you think if you are making them for personal use. Have you noticed that in the United States that they prosecute people that share out files on P2P networks, not the people that download them?
Personal Use is not codified, and there is not much caselaw, but it certainly exists just as Fair Use existed long before it was codified. It is an area that so far the recording industry seems unwilling to test the waters for fear that they will lse out big time. The Betamax decision looms large when considering going after personal use.
re fair use, this has nothing to do with fair use, it's an entity violating copyright of copyrighted materials for commercial purposes. An entity with very deep pockets. This isn't a snippet, it's copying the whole book, and whole collections of copyrighted works, for profit. Google is not a public library. It's a commercial enterprise.
I think it's very easy to get lost in the specifics and forget that this is a very simple idea, you don't have the right to create copies of copyrighted works. It sounds like you think you do. Libraries are not the copyright holders of these works. While I'm sure they themselves have very loose controls, being public non-profit community institutions, Google is no such thing. I and the publishing industry would be fascinated to hear your reasoning on this claim, although I have to admit I'd much rather hear the publishing industry's points here, since I think they'd be much more closely aligned with actual legal reality.
And consider the risks google is taking by the way; if they lose this case, they might also be challenged on their right to store in their cache copyrighted material on websites. Currently I don't think they pay much attention to that question because most people on the web want to be listed high in google, and so accept that process, but this is not guaranteed to remain the case. It would be interesting to see the basic premises of a search engine be challenged.
Or they can just do what Microsoft did, make a really big campaign contribution to the right party and avoid problems that way. We'll see how it turns out, it will be interesting. Or not, it will probably just fade away, like MS's more spectacular failures have.
The recording industry is going after the biggest file sharers because there are so many people doing it that they pick the easiest, and most visible, targets, the ones with the most files shared, and the most sharing activity. It's purely pragmatic, by definition on most file sharing networks, you can't download unless you upload, everyone shares, they are all technically guilty of exactly the same crime, it's just a matter of scale, and of course legal resource allocation.
Anyway, this seems like a classic case of making something utterly simple so complex that it seems, well, complex. I don't have the right to copy all the cds in the library, you know perfectly well that I don't have that right, it's not fair use, or anything else. I'm starting to think you might actually be a lawyer, you like playing with words enough to be one.
Somewhat hesitant to resurrect this topic, but EFF's Effector newletter today has something very on point.
There is a case in Colorado federal district court - Huntsman v. Soderbergh - that involves the question of whether it is possible to have intermediate copies of complete copyright works if the final product is not-protected.
|The case, Huntsman v. Soderbergh, involves the companies Family Flicks and Play It Clean Video, which make and distribute copies of movies with sexual and violent content removed. To make these "clean" copies of popular films, the companies must first make an "intermediate copy" of the entire movie on a computer in order to edit it. |
If the MPAA wins this case and it stands up, I think Google Publishing is SOL since they need to have a entire intermediate copy of the book to provide the snippets.
The question of whether the snippets are fair use is still open in mind, but the intermediate copy issue seems pretty clear.
Bambi Francisco of Marketwatch reports that EFF attorney Fred von Lohmann doesn't think the lawsuit has merit. He says Google Library is the equivalent of an electronic card catalog. Am I missing something here?
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