[Corpora-List] Google Books, copyrights, and corpora

Mark P. Line mark at polymathix.com
Fri Jun 16 20:48:01 CEST 2006

Doug Cooper wrote:

> It's not clear to me where the needless paranoia about US

> copyright law, or the comparisons to Napster, are coming from.

One person's paranoia is another person's caution, of course. Everybody
has to make their own decisions about known risks. But gleefully assuming
that one's actions on the cutting edge of the technology/copyright
interface could never be considered tortious or illegal because you think
it's okay under this week's case law is inviting exposure to unknown
risks, in my opinion.

> First, in regard to understanding the law, the major decisions

> -- Sandra Day O'Connor's 'sweat of the brow' ruling in Feist, the

> 'spark of creativity' ruling in Bridgeman vs. Corel, the 'broad

> transformative purpose' ruling in Kelly vs. Arriba Soft, the 'tell the

> robot' ruling in Field v. Google, etc.

These decisions can't prevent an operation from getting shut down by an
appellate court, or even by a trial court. Even if the lower decision is
overturned later because it is found by another court to contradict one or
more of these decisions, you will have had to shut down in the interim and
you may not have the wherewithal to rebuild your operation unless you're
somebody like Google.

> It seems to me that such a music corpus tool could reasonably

> make a case as a fair-use application, regardless of any Napster-

> related decisions.

Yes, all sorts of reasonable cases can be made, sitting here thinking
about them in the abstract. Real lawsuits, however, are not abstract. One
of my questions here has been whether or not Mom & Pop are going to have
the wherewithal to make any kind of case if they're the defendants in one
or more lawsuits. You don't get public defenders in civil matters. "I'm
going to fight this because I'm in the right!" is great stuff on TV, but
it sends real people into bankruptcy.

> More to the point, it seems to me that comparing

> compilers or users of research text corpora to Napster just doesn't

> make any sense -- on the contrary, what we do is much more

> analogous to building and/or using Google, which is clearly protected.

First, I was comparing Google Books, and those who would offer a similar
service purely for research purposes, to Napster. I was comparing the
users of Google Books, and of similar corpus research services, to
individual downloaders of copyright-protected music files. I see no reason
to believe that this comparison is ill-conceived.

Second, my point has not been that building and using Google Books is or
is not clearly protected right now (which is debatable in its own right in
the sense of straight legal argumentation, but probably not here). My
point has been that case law can change very rapidly (specifically, if
Google loses this lawsuit and the appeal), with ramifications for anybody
whose actions can be construed as analogous to providing the Google Books
service and for anybody whose actions can be construed as analogous to
those of a Google Books user.


-- Mark

Mark P. Line
San Antonio, TX

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